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[2017] ZALMPPHC 19
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Shivambu v S (AA02/2016) [2017] ZALMPPHC 19 (31 July 2017)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: AA02/2016
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
THOMAS
SHIVAMBU
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT : APPEAL
CORAM:
M.G
PHATUDI J, (MOKGOHLOA DJP, SEMENYA J, concurring)
[1]
INTRODUCTION:
1.1.
This is an appeal against the conviction of
the Appellant on 27 November 2014 by Webster J, sitting as a court of
first instance.
Tolmay J, who sat separately as a court of first
instance, passed sentence against the Appellant on 19 August 2016, as
Webster
J who convicted him, was said to be unavailable for medical
reasons. Section 275 of
Criminal Procedure Act 51 of 1977
makes
provision for a Judge other than a Judge who convicted an accused
person to proceed with sentencing in the circumstances.
FACTUAL
BACKROUND:
1.2.
The Appellant has been arraigned and
charged in the circuit court Sekgosese on one count of murder, two
counts of possession of
unlicensed firearms, and one count of
unlawful possession of ammunition. He pleaded not guilty to all
counts for which he was convicted.
He was assisted by defence counsel
throughout the trial.
1.3.
Pursuant to the convictions aforesaid, he
was sentenced as follows:-
1.3.1
On count 1, (murder read with
Section 51
(1) of Act 105 of 1997),
twenty five (25) years’ imprisonment;
1.3.2
On count 2, possession of an (unlicensed firearm) a 9mm Parabellum
caliber CZ model 75B, Ten (10) years’ imprisonment;
1.3.3
On count 3, (Unlawful possession of ammunition), ten years’
imprisonment;
1.3.4
On count 4 (possession of an unlicensed fire-arm) a 9mm described as
Parabellum caliber Norinko model 201C, ten years’
imprisonment.
The
sentences in counts 2, 3 and 4 were ordered in terms of the
provisions of
section 280
(2) of the
Criminal Procedure Act 51 of
1977
, to run concurrently. The effective sentence imposed against the
Appellant was therefore twenty (25) years imprisonment.
[2]
Leave to appeal to the Full Court which was only sought against
conviction, was granted by the
court
a quo
in respect of counts 1 and 4 only.
[1]
Leave to appeal on count’
s 2
and
3
were however, refused.
It
is against this backdrop that the appeal which is opposed by the
state, is before this court for consideration.
[3]
In an attempt to establish its case against the Appellant, the state
lined up several witnesses to testify. From the evidence
adduced by
each, none could be said to be an eye witness nor led direct evidence
in respect of the murder charge. The state by
and large, relied
considerably on the confessions the Appellant allegedly made. The
court a quo
,
it appears, based its conviction on the alleged confessions and
without regard to other extraneous corroborative evidence which
could
have been adverse to the Appellant.
It
was the admissibility or otherwise of these confessions that actuated
Tolmay J to have considered granting leave to appeal in
respect of
the murder charge in particular. The learned judge considered the
admissibility of the said statements or confessions
“a vexed
legal question”
[2]
I
propose to return to this contentious question in the course of this
judgment.
[4] Be that as it may,
the gravamen of the state’s case was largely that the Appellant
on or about the 24 August 2012, at
or near Dan Village Ritavi in
Letaba district, unlawfully and intentionally murdered Edward
Shivambu (“the deceased”).
According
to a summation of substantial facts, it is alleged that on the
evening of 24 August 2012, the Appellant went to the deceased’s
household, positioned himself and waited to ambush the deceased, who
happened to be his biological father.
The
deceased, as anticipated by the Appellant, went outside the house,
and was allegedly shot several times by the Appellant. The
deceased
succumbed and died in hospital. According to the post-mortem report
the cause of death was recorded as:-
“
multiple
gunshot wounds followed by internal and external bleeding resulting
in shock and death”
[5] The issue really is
whether could the Appellant be linked to the alleged killing
following the totality of the evidence the
state presented before the
court below.
I
now proceed to have a closer examination of the evidence though not
in greater detail as the evidence was mechanically captured
on the
record.
[6]
In the main trial proceedings, the state called Lieutenant Robert
Malekutu Malapane to testify.
[3]
He stated that having received a report of a shooting incident on
24
August 2012, he proceeded to the deceased`s home where the met Mr
Mathonsi who made a certain report to him. Based on this report,
Lt
Malapane visited the victim at the hospital. He then returned to the
deceased`s homestead. I must remark, though
orbirter
that no further mention of the “report” of Mathonsi to
the witness was ever made while he gave his evidence. It is
not
apparent if it was ever necessary had any relevance. In any event, on
return to the scene of crime and on further investigation,
he spotted
blood on the ground and also saw 10 spent cartridges and 3 bullet
shells on the ground. He then called finger prints
police officers to
the scene who took photographs.
[7] The second witness
the state called was Mr Kulani Brian Maswanganyi (“Maswanganyi”),
the manager at the Appellant
workplace, a private security business.
He stated that on the fateful night while expected to report for
duty, the Appellant did
not report on duty. The Appellant later
arrived at work and Maswanganyi drove him in his vehicle to the
Appellant’s parental
home as the appellant said that there was
a “problem”.
[8]
The next witness, Betlet Shivambu (“Shivambu”), testified
briefly that he called the Appellant at around 19h30 –
20h00 to
inform him of the gun shot sounds he heard from the direction of his
father’s residence. The Appellant was driven
to his father’s
place in a certain motor vehicle. I hasten to remark that the
evidence was that he was driven there by Maswanganyi.
The Appellant
according to Maswanganyi as a security officer always carried a
fire-arm when reporting for duty. Maswanganyi`s
evidence on
this aspect was, however, contradictory when confronted by the
defence counsel under cross-examination. Maswanganyi’s
evidence
did not establish if indeed the Appellant possessed an unlicensed
fire-arm in 2012 as alleged.
[9] Next to testify was
Cliff Mathye (“Mathye”). He testified that the Appellant
was his relative. He saw him after
the shooting incident.
The
Appellant handed to Mathye a firearm for safe keeping as he was to be
busy with some funeral arrangements of the deceased as
he would not
find time to leave it at his homestead. The witness received it from
the Appellant.
The
witness intimated that he knows that firearm forsafe keeping as it
was previously owned by his late father. The witness volunteered
to
give it to Appellant for nothing as he did not need it. This was in
2007.
He
went on to testify that on 28 August 2012, the police paid him a
visit at his home to inquire about a firearm. The witness handed
it
to the police. He said it was the same firearm he received from the
Appellant.
[10]
The issue that requires a closer examination at his point is whether
could it reasonably be said that on the evidence, the
firearm
retrieved from Mathye was found in Appellant’s possession.
[11]
It was at this stage of the main proceedings that when the state’s
counsel sought to introduce a statement purporting
to be a
“confession” by the Appellant that the trial court
directed the prosecution to “call your next witness”
even
without first having to investigate, whether the Appellant made the
statement, and if so, whether it amounted to a confession
in law.
This enquiry would ordinary best equip the presiding officer whether
to hold a trial-within- a- trial. It is this vexed
procedural issue
which, to my mind, would anatomize its admissibility or otherwise.
[12] Without determining
whether a trial – within-a- trial was commenced with the court
allowed the prosecution to call Warrant
officer Phillip Rabothata
(“Rabothata”) to testify. From the record, it is hard to
establish if his testimony and the
following witnesses’
evidence were in relation to the main trial or a trial
within-a-trial. I propose to revert to this issue
shortly.
Rabothata’s
evidence was that in September 2012, he was requested by the
investigating officer in the case to present the
Appellant before a
Magistrate for the purpose of making a “confession”.
Following
Rabothata was Ms Mamiki Khoza, whose evidence was merely to explain
her role as an interpreter during the alleged confession
before the
Magistrate concerned.
[13]
The Magistrate, Ms Hulisani Lorraine Madima (“Madiba”)
was also called to deal with how she obtained the alleged
confession
from the Appellant. Prior to her adducing evidence with regard
thereto, the defence counsel noted its intention to raise
an
objection against the admissibility of the controversial statement
but was not allowed by the presiding officer.
[14]
She testified that on 05 September 2012 at about 13h45, she took down
the Appellant’s confession. It was reduced to writing
in the
form of Exhibit “A” or Exhibit “BB”. The
contents thereof were read into the record by the witness.
It is
unnecessary to re-capture the same here. A copy thereof was
identified as Exhibit “BB: Vol 10, p871 – 875.
[15] Cross-examined, the
witness did not specify if she warned or advised the Appellant of his
right to legal representation before
he could make a confession.
In
addition, in the confession, the Magistrate recorded that the
Appellant, by making a confession, expected some “benefits”
that is, “by telling the truth things may be easier for me and
I might be released.” The Appellant was keen to “explain”
what is “the truth.” The defence counsel contended during
argument on appeal that the statement could not be
a valid
confession, the more so that the investigating officer, one
Lieutenant Makasela Henry Moshoana (“Moshoana”)
also took
a statement after he had arrested the Appellant on 25 August 2012.
The statement which he characterized as a “confession”
was recorded in Exhibit P.
[16] According to
Moshoana he, on investigation, managed to establish that the
Appellant was not a holder of a license to prosess
a firearm.
He
was also informed by the employer (Maswanganyi) who also transported
the Appellant to the deceased’s house before the shooting
incident, that the Appellant is known to have a firearm.
[17]
In order to verify that allegation, he obtained as search warrant
which he executed on 28 August 2012, after which he conducted
a
search at the Appellant’s house.
[18]
He was accompanied by the Appellant during the search, to which he
consented.
[19] In searching the
Appellant’s house, the witness found several items eg 6 firearm
holsters, 2 black magazine holders,
empty box of the ammunition, 2
sets of silver handcuffs, a magazine of 9mm pistol, and a starline
9mm pistol inside the wardrobe.
I
pause to remark that this particular 9mm Lorenco 21 C pistol is a
firearm referred to in Count 4 of the Indictment in respect
of which
Moshoana gave evidence. It was found by Moshoana inside the
Appellant’s house and for which, the Appellant had no
valid
license to possess it. He exercised control and/or the intention to
possess it contrary to the provisions of the
Firearms Control Act 60
of 2000
.
[20]
The firearm in Count 2, according to Moshoana’s evidence, was
brought to him by Cliff Mathye. The Appellant was arrested
on the
strength of Mathye’s handing over of the said firearm, which
needless to say, was not in the Appellant’s physical
control or
possession on 24 August 2012.
[21]
It was after the handing over of the firearm that it was alleged that
the Appellant was prepared to confess the murder to Moshoana.
He then
took from him “a warning statement.”
[22]
Once again, the statement obtained by the investigating officer,
Moshoana, was disputed by the Appellant. It was, however,
captured on
record and handed in as Exhibit “A
1
– A
5
”
[23]
Like the previous statement of “confession”, and despite
the prosecution having, informed the court of its intention
to use
the said confession against the Appellant, and also the defence`s
objections thereto, the presiding officer, nonetheless
allowed such
confession in evidence without further ado.
[24] This then
immediately leads to the next intriguing inquiry, namely, was it
procedurally correct for the
court a quo
to have ostensibly
permitted, in the middle of the principal trial proceedings,
some evidence suitable to have been a subject
of a so-called
trial-within-a trial.
In
casu
the
record shows peculiar situations where the prosecution attempted on
two occasions to first investigate the circumstances under
which the
“confession” and “warning statements” were
allegedly made, to gauge if the statement was tantamount
to a
confession or an admission.
S
v Bontsi
1985 (4) SA 544
(BG) at 547.
[25]
It is trite practice in criminal proceedings for the trial court to
conduct a preliminary inquiry to gauge the nature of the
statement
contested before a trial within-a-trial is conducted relating to the
further question whether such as statement or confession
was freely
and voluntarily made, without any undue influence, and that the
author therefore was in his/her sober senses. This is
particularly
significant where the parties are in agreement that the nature of the
confession may content be established from the
contents exclusively,
without recourse to evidence aimed at its proper construction.
[26]
In this instance, no doubt, the trial court relied on the contents of
the statement in convicting the Appellant, particularly
on the count
of murder.
[27]
In facts analogous to the present appeal, the Supreme Court of Appeal
in
S v Gama
(Unreported case no: 127/13, p132 delivered on 27/09/ 2013) Salduker
JA referred to a “disquieting feature” of the
appellant’s
conviction where, like in this matter, the trial court relied on a
confession made by the appellant. This omission,
like in this
instance, no basis having been laid, and the trial court having
convicted on it, the SCA (Gama’s case) supra
found it a
“fundamental miscarriage of justice” (P32,Par: [6] and
[14] of the judgment.
[28]
The legal position as it generally obtains in matters like this, I
venture to suggest, may be aptly set out as follows:-
(a)
The prosecution will inform the court of its intention to use
evidence of a confession against the accused. The defence will
raise
its objection if any, against the use of such confession in evidence.
(b) A brief inquiry
should be conducted by the presiding officer to determine first, if
the accused person had indeed made a statement,
and if in the
affirmative, the nature and context in which it was made, and
ultimately, whether it amounted to a confession;
(c) If
it was found to constitute a confession in law, it becomes imperative
for the trial court to hold a trial-within-a-trial
to determine its
admissibility, and the prosecution, would be obliged to establish its
admissibility within the precepts of Section
217 of the Act and as
entrenched in case law on the relevant subject.
[29]
In this case, the court below failed to hold a trial-within-a trial
in order the admissibility of the confession. This was
because the
prosecution drew the court`s attention that the defence intends to
challenge its admissibility. Failure to do so permeated
the heart of
the Appellant’s right to a fair trial, which demands that it be
held according to the dictates of equity and
justice.
[30]
Counsel for the Appellant also submitted and correctly so, in my
view, that the investigating officer Lt Moshoana, should not
have
allowed himself to be a player and umpire in the matter, first by
investigating the case and having obtained the ill-fated
“Warning
statement” much to Appellant’s detriment. He should have
assigned a different commissioned police officer
to have obtained the
statement from the Appellant.
[31]
That said, I am of the opinion that, a conviction on murder which was
actuated by the said; “confession” was unwarrantedly
admitted in evidence. The conviction on the murder charge, as
challenged on appeal, was clearly fatally flawed from inception,
and
this Court, having an inherent power and discretion to intervene
where there was a gross misdirection on conviction, should
be at
large to set aside the conviction on that charge. There is clearly no
sufficient supporting evidence on the murder charge.
[32]
Turning to the conviction on Count 4, the evidence of Lt Moshoana who
conducted a search at the Appellant’s house where
an unlicensed
firearm was found hidden in a wardrobe, the count finds no reason to
disturb the conviction in respect of this court.
There is direct and
uncontroverted evidence implicating the Appellant with regard to that
finding of a firearm in his house, which
the defense counsel also
conceded to.
[33] In consequence, I
propose If I may, that the following orders would be appropriate:-
ORDER:
[1]
The conviction and sentence in respect of the murder charge in Count
1, is set aside;
[2]
The appeal against conviction in count 4 is refused.
[3]
The sentences imposed in counts 2, 3 and 4 are ordered to run
concurrently in terms of
section 280(2)
of the
Criminal Procedure
Act, 1977
.
[4]
The sentence imposed in 3 above, is ante dated to
19
August 2016.
__________________________
M.G
PHATUDI
Judge
of the High Court, Limpopo Division, Polokwane
I
agree
_________________________
F.
Mokgohloa
Deputy Judge
President, of the High Court, Limpopo Division, Polokwane
I
agree
__________________________
M.V
Semenya
Judge
of the High Court, Limpopo
Division, Polokwane
REPRESENTATIONS:
Counsel
for the Appellant : Mr L.M Manzini
Instructed
by c/o Legal Aid S.A Polokwane Justice Centre
Counsel
for the Respondent
:
Adv
N.C Molepo
Instructed
by
c/o Director of Public Prosecution
POLOKWANE
Date
heard
: 05 May
2017
Date
delivered
:
31
July 2017
[1]
The
Criminal Procedure Act, 1977
as amended, Vol 10.p749 Record
[2]
Vol 10, P268, record
[3]
Vol 1 pp11 -21, record