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[2017] ZASCA 149
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Qhinga v S (1327/2016) [2017] ZASCA 149 (15 November 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
Not
Reportable
Case No: 1327/2016
In the matter between:
M
QHINGA
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Qhinga
v State
(1327/2016)
[2017] ZASCA 149
(15 November 2017)
Coram:
Leach,
Seriti and Saldulker JJA and Plasket and Mbatha AJJA
Heard:
2
November 2017
Delivered:
15 November
2017
Summary:
Evidence
– pointing-out – trial-within-a trial – after
pointing out ruled admissible, no evidence in record to
prove
contents of pointing-out – such evidence either not led or, if
led, lost and not capable of being reconstructed –
no
admissible evidence implicating appellant in commission of offences –
convictions and sentences set aside.
ORDER
On
appeal from:
Eastern
Cape Local Division of the High Court, Bhisho (Pakade, Schoeman and
Roberson JJ sitting as court of appeal):
1
The appeal succeeds, and the appellant’s convictions and
sentences
are set aside.
2
Paragraphs 2 and 3 of the order of the court a quo are accordingly
altered
to read as follows:
‘
2.
That the appeal in respect of the first, third and fourth appellants
is allowed and
their convictions and sentences are set aside.
3.
That the appeal in respect of the second, fifth and sixth appellants
is dismissed.’
REASONS
FOR JUDGMENT
Plasket
AJA (
Leach,
Seriti and Saldulker JJA and Mbatha AJA
concurring)
[1]
At the conclusion of the hearing of this appeal we made an order in
the following terms:
1
The appeal succeeds, and the appellant’s convictions and
sentences
are set aside.
2
Paragraphs 2 and 3 of the order of the court a quo are accordingly
altered
to read as follows:
‘
2.
That the appeal in respect of the first, third and fourth appellants
is allowed and
their convictions and sentences are set aside.
3.
That the appeal in respect of the second, fifth and sixth appellants
is dismissed.’
We
undertook to furnish our reasons in due course. These are those
reasons.
Background
[2]
On 12 July 2006, a group of armed men entered the precinct of a
community hall in Newlands near East London where social grants
were
being paid by employees of All Pay Payment Services. The men, acting
in the furtherance of a common purpose, robbed a security
guard of
his firearm and 30 rounds of ammunition; shot and injured a second
security guard and robbed him of his firearm and 18
rounds of
ammunition; robbed an employee of All Pay Payment Services of an
amount of money intended for the payment of social grants;
robbed a
person of his vehicle, which was used to flee the scene; and later
fired shots at a policeman.
[3]
Arising from these events, seven men, including the appellant (who
was accused 1), were indicted in the Eastern Cape Local Division
of
the High Court, Bhisho on a total of ten charges, the last four of
which are irrelevant to this appeal and will not be discussed.
The
charges of relevance were four counts of robbery with aggravating
circumstances and two counts of attempted murder. At the
conclusion
of a lengthy trial before Dhlodhlo ADJP, one of the seven was
acquitted of all charges and the remaining six, including
the
appellant, were convicted of four counts of robbery with aggravating
circumstances and two counts of attempted murder. The
six accused
were sentenced to lengthy terms of imprisonment – an effective
28 years imprisonment in the cases of five of
them (including the
appellant), and an effective 22 years imprisonment in respect of one
of them.
[4]
All six men applied for leave to appeal against both conviction and
sentence. That was refused by Dhlodhlo ADJP. They petitioned
this
court but their petition was dismissed. They then applied to the
Constitutional Court to be granted leave to appeal to a full
court of
the Eastern Cape Local Division of the High Court, Bhisho or for the
matter to be remitted to this court for a fresh consideration
of
their petition. Their application succeeded and the petition was
remitted to this court,
[1]
which
granted the appellants leave to appeal to the full court of the
Eastern Cape High Court, Bhisho against both conviction and
sentence.
[5]
The full court set aside the second attempted murder conviction in
respect of all six appellants. It also set aside the convictions
of
two of the appellants. It confirmed the convictions of a further
three of the accused but it split in respect of the appellant.
[6]
The only evidence against the appellant was a pointing-out that
amounted to a confession as well as a further confession that
was
subsequently made. Pakade J, with Roberson J concurring, held that
while the pointing-out had been correctly admitted by the
trial
court, the subsequent confession had not been. The pointing-out was,
in the view of the majority, sufficient for a conviction
in respect
of the first five counts.
[7]
Schoeman J, dissenting, was of the view that the pointing-out had
been made in circumstances that violated the appellant’s
fair
trial rights, had not been made freely and voluntarily and was thus
inadmissible. She would have set aside the appellant’s
convictions in their entirety.
[8]
The appellant and two of his co-accused petitioned this court for
special leave to appeal. The appellant’s petition was
granted
but those of the other two men were refused.
The
issues
[9]
Two issues arise. The first is whether the content of the appellant’s
pointing-out was proved and the second is whether
it ought to have
been admitted in the first place. I shall deal with each briefly.
[10]
After the trial-within-a-trial in respect of the appellant’s
pointing-out and later confession, Dhlodhlo ADJP made rulings
admitting both. The record reflects that the matter was postponed to
the next day at the request of the State advocate so that
witnesses
‘can come and place this evidence on record’.
[11]
The pointing-out was conducted by Superintendent Sonwabile Nkosiyana.
He had testified in the trial-within-a-trial. Despite
what the State
advocate stated, however, there is no indication in the reduced
record agreed to by the parties of him having testified
after the
ruling had been made that the pointing-out was admissible.
[12]
When this problem was raised with the parties, Ms Crouse who,
together with Mr Moolman, appeared for the appellant, informed
the
court that Superintendent Nkosiyana’s evidence was also nowhere
to be found in the full record. That was accepted by
Mr Willemse, who
appeared for the State.
[13]
Parts of the record had been lost and had been reconstructed. It was
accepted by the parties that no purpose would be served
in making any
further attempt to reconstruct the record in the hope that
Superintendent Nkosiyana’s evidence may be found.
[14]
The result is this. Either Superintendent Nkosiyana never gave
evidence to prove the content of the pointing-out, or his evidence
is
lost and cannot be reconstructed. In either event, there is simply no
evidence proving the pointing-out. It is thus not admissible
against
the appellant. That being so, there is no evidence whatsoever
implicating the appellant in the commission of the offences
of which
he had been convicted. For that reason, we made the order upholding
his appeal and setting aside his convictions and the
sentences
imposed on him.
[15]
Although that finding effectively disposes of this appeal, the
conduct of the police calls for comment.
[16]
The facts leading to the appellant making the pointing-out and the
subsequent confession were succinctly set out by Schoeman
J in her
dissenting judgment as follows:
[2]
‘
The
first appellant was arrested at 06:00 on 1 August 2006. He was not
taken to a police station but to the offices of the Serious
and
Violent Crime Unit at an army base. He was detained in a motor
vehicle until 15:00 and only taken to police cells about 12
hours
after his arrest. He was removed from the police cells at 03:30,
returned to the cells at 05:10 and again booked out at 07:05.
He then
made a pointing out. He was taken to court, not within 48 hours as
required, but on 4 August 2006. The first appellant
indicated in
court, on his first appearance that he required legal representation.
In spite of that, after his appearance in court,
the first appellant
was taken to a police officer where he made a confession.’
[17]
Schoeman J was of the view that all of this was testimony to a most
unsatisfactory state of affairs and that the ‘explanation
why
he was removed in the early hours of the morning ie for his own
safety, does not hold water’.
[3]
In addition to the facts set out by Schoeman J, the following must be
added: first, the appellant stated that he was denied food
during the
day. While the police witnesses said that he was given some food, it
is apparent from the record that if he was fed,
it would have been
very little; secondly, after he had been held captive in the motor
vehicle, he was subjected to an interrogation
before eventually being
taken to the cells at a police station.
[18]
The State bore the onus of proving that the pointing-out was freely
and voluntarily done by the accused without undue influence
having
been brought to bear on him. The facts that I have outlined above are
strongly indicative of pressure being placed on the
appellant by the
police, from the moment of his arrest, to forego his right to silence
and to create an environment conducive to
him incriminating himself.
[19]
This case highlights precisely how the police should not conduct
themselves when investigating offences. In a constitutional
democracy
founded on the rule of law and values of human dignity, equality and
the advancement of human rights and freedoms,
[4]
such aberrant conduct is beyond the pale and cannot be tolerated. The
policemen implicated in this wrongdoing acted in defiance
of the
Constitution and the
South African Police Service Act 68 of 1995
.
Section 13(1)
of the Act places an obligation on policemen to
exercise their lawfully imposed powers, to perform their lawfully
imposed duties
and comply with their lawfully imposed functions
subject to the Constitution and ‘with due regard to the
fundamental rights
of every person’.
[20]
The facts of this case leave one with grave doubts as to the fairness
of the appellant’s trial. But it is unnecessary
to decide
whether Schoeman J was correct in her view that the conviction could
not stand for that reason, as there was no admissible
evidence
against the appellant.
___________________
C
Plasket
Acting
Judge of Appeal
APPEARANCES
For
the appellant:
L Crouse and M Moolman
Instructed
by:
Legal Aid South Africa
Port Elizabeth and
Bloemfontein
For
the respondent:
D Willemse
Instructed
by:
Director of Public Prosecutions, Bhisho and Bloemfontein
[1]
See
S
v Qhina & others
2011
(2) SACR 378
(CC).
[2]
Para 8.
[3]
Para 9.
[4]
Constitution, s 1.