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2017
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[2017] ZAFSHC 105
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Lelala v S (A140/2015) [2017] ZAFSHC 105 (15 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No: A140/2015
In
the matter between:-
MOEKETSI
PETRUS
LELALA
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
VAN ZYL J et MHLAMBI, J
HEARD
ON:
05 JUNE 2017
DELIVERED
ON:
05;
15 JUNE 2017
REASONS
MHLAMBI,
J
[1]
On 05 June 2017 this appeal served before this court and the
following orders were made:
“
1. The appeal is upheld and
the conviction and sentence are set aside.
2. The person in charge of
the appeals of this division is requested to forthwith inform the
relevant prison authorities of the
outcome of this appeal.”
[2]
During argument, Mr Nel, the appellant’s counsel, informed the
court that, based on the correspondence between the appellant
and Mr
D. Reyneke (also attached to the office of Legal Aid South Africa)
the accused’s last known address during 2017 was
at the
Grootvlei prison near Bloemfontein. Mr Bontes, on behalf of the
respondent, referred to the transcribed record and advised
the court
that on 6 September 2011, the accused had been granted bail pending
the appeal in the amount of four thousand rand (R
4000.00) only. It
was therefore evident the appellant had failed to pay the bail money.
The court was of the view that in the interest
of justice and
fairness, it was necessary and imperative that an order as granted
above, be made to facilitate the appellant’s
early release from
prison while the full reasons for his successful appeal were being
written.
[3]
I now come to the reasons that gave rise to upholding of the appeal
and the setting aside of the conviction. The grounds of
appeal were
crafted as follows:
“
1.3 In convicting the
appellant, the court a quo erred in making the following
findings:
1.3.1 That the state proved the guilt
of the appellant beyond a reasonable doubt;
1.3.2 That the warning statement of
the appellant was admissible as evidence against him;
1.3.3 That the only reasonable
inference that could be drawn from the money found with the appellant
was his participation in the
robbery;
1.3.4 Rejecting the appellant’s
version as not being reasonably possibly true.”
[4]
Both the state and the appellant were
ad idem
that the appeal
should succeed and the conviction set aside. The appellant and two
others were convicted on a charge of robbery
with aggravating
circumstances of a mazda motor vehicle and cash in the amount of R
49 000.00. The second charge was the pointing
of a firearm and
all three accused were acquitted on this charge. The court below
found that the appellant’s involvement
in the commission of the
crime was proven beyond reasonable doubt by: a) the discovery
of the amount of R 710.00 which he
handed over to the police and b)
the contents of his voluntary admission which he made in his warning
statement to inspector Ncangiso
on 6 October 2000.
[5]
A trial within a trial was held to determine the admissibility or
otherwise of the appellant’s statement to the police
officer,
inspector Ngcaniso. The court found that the state had proven beyond
reasonable doubt that the statement made to the inspector
was made
voluntarily and without compulsion and the contents were admissible
as evidence against the appellant.
[6]
Inspector Ncganiso testified that he took the appellant’s
warning statement and also explained his rights to him. The
appellant
responded positively to the questions posed to him and made the
warning statement of his own free will, without being
coerced. During
re-examination and in response to questions from the bench
surrounding the appellant’s warning statement,
the inspector
stated the following:
“
Hof:
Wat is
die vrae, kan die getuie net vir die Hof sê wat is die vrae wat
voorkom op bladsy 3, kom daar enige veduidelikings
voor op bladsy 3
----Ja.
Wat is dit? – Hy het dit
voorheen gesê, ek verkies om geen verklaring te maak op die
stadium nie.
Aanklaer:
Verskoning,
ek gaan net die ondersoekbeampte daar stop edelagbare.”
During
cross-examination by Mr Johnson on behalf of the appellant, the
inspector’s responses are recorded as follows in the
transcribed record on page 233:
Ek sien daar is geen melding
daarvan dat hy, beskuldigde 2 aangedui het dat hy bereid is om te
antwoord op vrae of enigsins so iets
nie, stem u saam daarmee?----
Wat hy aangedui het?
Ja.--- Ja, dit is so. Want soos ek
gesê het, hy het gesê hy wil geen verklaring maak nie.
Maar ek het hom nog steeds
vrae gevra wat hy geantwoord het.
Met ander woorde desnieteenstaande
die feit dat hy gesê het hy verkies om geen verklaring te maak
nie, het u nog steeds vrae
gevra, nè?----- Dit is korrek”.
[7]
The investigating officer, inspector Motsoeneng testified that before
the appellant made a warning statement to the police various
police
men questioned the appellant about the incident in the kombi and at
the police offices. During the trial and under cross-examination
the
witness gave the following response on page 269:
“
En toe het u hulle beïnvloed
deur te sê hulle sal lank tronk toe gaan as hulle nie saamwerk
nie en toe gee hulle samwerking
daarna. Dit is u weergawe in die
borgaansoek, bevestig u dat?--- As ek mooi onthou het ek so gesê.
Ja. U het hulle mos derhalwe
beïnvloed dan om met u saam te werk en byvoorbeeld op u
weergawe, uitwysings te doen. Ek praat
van hulle in geheel, nie net
een nie.---- Dit is nie om ’n persoon te beïnvloed of te
dreig nie maar ek wys hom net
dat hy moontlik gevangenis toe kan gaan
as die goed gekry word.
Ek verwys u na bladsy 105 agbare
van die rekord vanaf reël 4:
“
Eers het hulle vir ons laat
sukkel, maar na ons verduidelik het hulle sal nie borg kry nie, het
hulle saamgewerk.”
Wat beteken dit? Wat anders as
onbehoorlike beïnvloeding is daardie sinnetjie wat ek nou net
vir u gelees het? “Eers
het hulle vir ons laat sukkel, maar na
ons veduiduidelik het hulle sal nie borg kry nie, het hulle
saamgewerk.” Wat
anders as onbehoorlike beïvloeding
beteken daardie sinnetjie?---- Dit is wat ek gesê het dat as
hulle maak dat die ondersoek
dan stadig moet gaan en daar nie
vordering is nie, dan sal ek moet gaan sê in die borgaansoek
dat hulle nie borg moet kry
nie.”
[8]
The appellant testified that he was assaulted at the time of his
arrest and when he was forced to sign a statement that was
already
prepared by the police. The assault stopped when he signed the
statement. On the day in question, 29 September 2000, he
was at his
brother-in-law’s house where the latter conducted a tuck shop
business. He slept in a room attached to the shop.
The police found
him there, assaulted him and informed him that he was being arrested
for the robbery that took place at the factories.
They said to him
they wanted the money that was robbed from the factories.
[9]
He informed the police that his remuneration or money he received
from his brother-in-law was kept for him by Ngotwana, his
co-worker
at the shop. The reason for him being at his brother-in-law’s
place was that the shop was burgled. The money in
the amount of R
710.00 was handed over to the police at Ngotwana’s house, a few
blocks away from the shop.
[10]
It was submitted on behalf of the appellant that the appellant
contested the warning statement from the beginning and the court
a
quo
should have found that there was doubt regarding its
voluntariness. The appellant had furthermore given a reasonable
explanation
for his possession of the amount of R 710.00 and the
court should have accepted it as such.
[11]
The state, in its submission, pointed out that page 3 of the
appellant’s warning statement (exhibit A) indicated that
he did
not want to make a statement to the police and that Exhibit B was
taken after the appellant had indicated that he did not
want to make
a statement. This in itself violated the appellant’s right of
remaining silent.
[12]
The state submitted further that the appellant had sufficiently
explained where he got the R 710.00 from. The inference could
therefore not be made that the money was from the robbery and there
was no evidence whatsoever that the money could have been obtained
from the robbery. There was no gainsaying evidence that the money was
not received from the brother-in-law. For that reason, the
state
conceded that the conviction could not be supported and that the
appeal against conviction should be upheld. I agree.
[13]
Consequently, we made the order referred to in paragraph 1 of this
judgment.
_____________
C.
VAN ZYL, J
I
concur
_
_____________
J.J.
MHLAMBI, J
On
behalf of appellant:
Adv. P. Nel
Instructed
by:
Bloemfontein
Justice Centre
Bloemfontein
On
behalf of appellant:
Adv. L Bontes
Instructed
by:
Director
Public Prosecutions
Bloemfontein
/SR