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[2017] ZAFSHC 93
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S v Mmaki and Others (13/2017) [2017] ZAFSHC 93 (20 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, PHUTHADITJHABA
Case
number: 13/2017
In
the matter between:
THE
STATE
and
THABANG
MAKOKO MMAKI
ACCUSED 1
THIEHO
WILLIAM MOFOKENG
ACCUSED 2
MAGAISHO
SEHLAKO
ACCUSED 3
TLADINYANA
SAOANA
ACCUSED 4
JACOB
LETUKA
SAWANA
ACCUSED 5
HEARD
ON:
22, 23, 25 & 29 May
2017; 5, 6, 7, 8, 9, 12, 13, 14, 15 & 20 June 2017
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
20 June 2017
[1]
The accused persons were arraigned before me on a plethora of charges
ranging from housebreaking with the intent to rob and
robbery,
housebreaking with the intent to steal and theft, attempted murder,
unlawful possession of firearms, unlawful possession
of ammunitions
and murder. These charges were read in conjunction with Section
51 (1) and (2) of Act 105 of 1997. They
all pleaded not guilty
and did not proffer any plea explanations.
[2]
This matter has a long and unfortunate history. The proceedings
commenced before my sister Ebrahim, J on the 29
th
February 2016 until the 1
st
April 2016. Thereafter because of matters beyond her control
they were halted. On the 2
nd
February 2017, my brother Musi AJP ordered that the trial commence
de
novo
before me from the 22
nd
May to the 30
th
June 2017.
[3]
On the 25
th
May 2017 per agreement, the parties applied that the transcribed
record of the proceedings and its contents before my sister Ebrahim,
J be admissible before me.
A
formal application was moved for the admissibility of hearsay
evidence and I granted it on the 29
th
May 2017.
[4]
In terms of section 3 of Act 45 of 1988, hearsay evidence means
evidence, whether oral or in writing the probative value of
which
depends upon the credibility of any person other than the person
giving such evidence. The section reads as follows:-
Hearsay
evidence.- (1) Subject to the provisions of any law, hearsay evidence
shall not be admitted as proceedings, unless-
(a)
each
party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b)
the
person upon whose credibility the probative value of such evidence
depends, himself testifies at such proceedings; or
(c)
the
court, having regard to-
(i)
the
nature of the proceedings;
(ii)
the
nature of the evidence;
(iii)
the
purpose for which the evidence is tendered;
(iv)
the
probative value of the evidence;
(v)
the
reason why the evidence is not given by the person whose credibility
the probative value of such evidence depends;
(vi)
any
prejudice to a party which the admission of such evidence might
entail; and
(vii)
any
other factor which should in the opinion of the court be taken into
account’
is
of the opinion that such evidence should be admitted in the interest
of justice.
[5]
In
S v
Ramavhale
1996 (1) SACR 639
(A)
the court held that “
a
judge should hesitate long in admitting or relying on hearsay
evidence which plays a decisive or even significant part in
convicting
an accused, unless there are compelling justifications for
doing so”
.
[6]
Hearsay evidence is fraught with potholes and minefields. The
court must be cautious in admitting it. There are
three pillars
governing the admissibility of hearsay evidence namely the consent
between parties, testimony by the person on whose
credibility the
value of the hearsay depends and judicial discretion in the interests
of justice.
[7]
In this matter there was express consent between the parties that
the record be admissible. It was submitted by both
counsel that
the accused persons have been appraised of the implications and
consequences thereof and that they gave instructions
to that effect.
I was also assured by them that the instructions to both legal
counsel were also the same as in the previous
proceedings. This
aspect was confirmed by the individual accused.
[8]
The state submitted that some witnesses are reluctant to testify
again. It is not always a pleasant exercise to be in
court.
It is understandable given the path that this matter progressed until
now. I do not have legal authority
to compel them to come
to court and obviously like interested parties they would prefer
closure at the earliest convenience.
[9]
Central to every criminal proceedings is the right to a fair trial.
This is enshrined in the Bill of Rights and is incumbent
upon every
court to jealously guard against any infringement of the principle.
The court is also endowed with the discretion
which must be exercised
judicially whether to accept or reject hearsay evidence.
[10]
In this matter, accused 1 and 4 have been incarcerated for over four
years awaiting trial. This is tantamount to serving
a jail
term. It will be fair to them that this matter is concluded as
swiftly as is humanly possible. If the transcribed
record is
rendered inadmissible, the witnesses will have to be recalled and the
process started
de
novo
.
In the event of the matter not being concluded for one reason or the
other, then it will be postponed to the fourth term.
This will
have the effect of adding approximately six (6) months to the period
that they will have to spend in jail. Undoubtedly
this matter
is also causing a disruption in the daily life activities of the
accused persons who are on bail.
[11]
Assessing all the submissions in totality, adhering to the law and
decided cases, I ruled that the transcribed record be admissible
and
handed in as
Exhibit “AA”
. The missing part
of the record was reconstructed and handed in as
Exhibit “BB”
.
The portion that followed the last mentioned part was also admitted
and handed in as
Exhibit “CC”
. It comprises
594 pages in total.
[12]
The complainants in different matters gave a detailed description of
what transpired on those occasions that they were attacked
by their
assailants. Their houses were broken into by two (2) or three
(3) hooded men under the cover of darkness either
in the middle of
the night or early hours of the morning. They will get up only
to be confronted by a gun wielding foul mouthed
male person in their
house. If they submit, these individuals will help themselves
by removing their belongings particularly
electric appliances like
hi-fi, amplifiers, speakers etc. On occasions that they
resisted or the assailants panicked they
were shot. One Junius
Boloko went out to investigate after probably hearing someone
smashing his sliding door and paid the
ultimate price. He was
shot dead. The lawlessness and mayhem that reigned in and
around the villages of Boiketlo, Namahadi,
Mangaung, Ha Sethunya and
others in 2013 was not only their “
annus
horibilis”
but also the “
Night
of the Long Knives”.
[13]
The different witnesses were also able to identify their recovered
properties with different distinct marks and in some occasions
had
proof of purchases and package boxes with matching serial numbers to
the recovered items. In some occasions it was general
descriptions given the fact that the item concerned had long been in
the family and no documentary proof could be provided.
[14]
The complainants were
ad idem
about one aspect regarding their
assailants i.e. they were black male persons. However they gave
descriptions which were
general in nature like their physique that
the one was tall and the other short, the one was a bit stout while
the other was slender
and the one was talkative while the other
remained mute etc. In short they were general and not distinct
in nature.
These descriptions did not meet the requirements
laid out in the celebrated judgement of
S v Mthethwa
1972 (3) SA
766
(A) at 768 A - C
and cited with approval in
S v Chabalala
and another, Case Number A126/2016 (FB unreported).
[15]
Warrant Officers Tsotetsi and Mohale who were the core investigative
team in these matters also took to the stand. They
testified
about how the complaints trickled in and obtained statements from
complainants raided the residence of accused number
2 and discovered
suspected stolen property which was removed; collected evidentiary
material in the form of spent cartridges from
various crime scenes
and found a firearm at the residence of accused number 1 and finally
the arrest of all the accused before
the court. The two (2)
turned out to be the central role players in these matters although
with disastrous consequences.
[16]
The testimony of Mamorena Matlabe was a confirmation that accused
number 1 was her tenant and she gave permission to the police
to
forcefully enter the residence on the day of the
23
rd
May 2013
.
The accused was arrested there on that occasion.
[17]
Captain Freddie Weitz attached to the Local Criminal Record Centre
Phuthaditjhaba also testified that on the
29
th
May 2013
at about 14H00 pm, he received exhibits in the form of a firearm and
spent cartridges from Warrant Officer Mohale. They were
then
packed, marked and sent for analysis to the Forensic Laboratory in
Pretoria.
[18]
The outcome of the analysis was confirmed by David Kabini and Shere
Lekgothoane who are Forensic Analysts attached to the Ballistic
Unit
at the Laboratory. Their findings are contained in
Exhibits
“EE”, “FF”, “GG” and “HH”.
These were handed in per agreement between the state and both defence
counsel. They relate to the examination of the
injuries and
clinical findings in
charges
number 8 and 12
respectively. The defence also handed in
Exhibits
“JJ” to “OO”
.
These pertain to the identity of the deceased, date and cause of
death, contents and findings contained in the post mortem
report in
charge
number 20
.
[19]
At the conclusion of the state case, both counsel for the defence
made an application for a discharge of all accused in terms
of
Section
174 of Act 51 of 1977
.
Written heads of arguments were handed and they are part of the
record. The section read as follows:-
“
If,
at the end of the case for the prosecution at any trial, the court is
of the opinion that there is no evidence that the accused
committed
the offence referred to in the charge or any offence of which he may
be convicted on the charge, it may return a verdict
of not guilty”
[20]
In his seminal work titled
Commentary on the Criminal Procedure
Act on page 22 -122, Service 57 of 2016 Du Toit et all
describes
the phrase “
no evidence”
in the section to “
have
been interpreted to mean no evidence upon which a reasonable man
acting carefully may convict”
. It therefore stands to
reason that the court must carefully evaluate and consider the
evidence tendered by the state like
the reasonable man.
Thereafter exercise its discretion in a judicial manner, free of
misdirection. The cardinal principle
of the law is that “
he
who alleges must prove”
. It was held in
S v Mia
2009 (1) All SA 447
(SCA)
that the proper approach in a criminal
matter is that evidence must be considered in its totality.
[21]
I have already alluded to the established fact that the complainants
were unable to identify at all relevant times any of the
accused
before me. It therefore became obvious that the state case
centred around the collection or discovery, the marking,
storage or
safekeeping, delivery or dispatching of exhibits to the Forensic
Laboratory. The second aspect was the statement
purported to
have been made by accused 2 implicating accused 1 and 3 on charges 7
-10. This was ruled admissible in the proceedings
before my
sister Ebrahim, J and marked
Exhibit
“R”
.
[22]
On the
23
rd
May 2013 at around 10H00
,
a police contingent led by Tsotetsi descended on the residence of
accused number 1. Among them was a young and inexperienced
Constable Rantso Patrick Nkoko. He discovered a firearm and
confiscated it. He apparently handed it to Mohale at the
residence of accused number 1. This aspect is denied or could
not be confirmed by the latter that the firearm was indeed
handed to
him. According to the SAP13 records a firearm was handed in by
Nkoko on the
24
th
May 2013
at
12H25
.
This is extrapolated from the records handed in and marked
Exhibit
QQ
.
This is almost a day after it was found and confiscated from accused
number 1.
There
is no plausible explanation about the lapse of approximately 24 hours
between the two (2) events.
The evidence of Nkoko, Mohale and Tsotetsi was unhelpful in providing
an explanation of any value. The questions that
remains
pertinent are the following:-
1.
Where
was the firearm in the missing 24 hours?
2.
In
whose custody was the firearm during this period?
3.
Is
the firearm that was discovered and the one ultimately sent to the
Forensic Laboratory the same weapon?
4.
What
are the possibilities of tampering with it during the period that its
whereabouts cannot be accounted for?
[23]
There was also the evidence of Mohale pertaining to the cartridges
which he collected from the scenes of crime in
charges 7 to 10
and
15 to 18
. Mohale cannot explain as to what happened
between 11
th
May 2013 (being the date of his discovery) to
the 29
th
May 2013 (being the date that he handed the same
to Weitz). This resulted in exhibits being incorrectly marked
and wrong
CAS numbers being documented in the process. This
creates further doubt in the final outcome of the analysis and also
depicted
the kind of police investigation that must be frowned upon.
No reasonable man will place reliance on such comical errors of
Mohale.
[24]
The importance of proper handling of the exhibits was discussed in
S
v Sithole
2013 (1) SACR 298
(GNP)
.
In paragraph 30 the following is said:-
“
It
is important that the chain be properly proved if it is not admitted
by the accused”
In
that matter the court was confronted with a situation similar to the
one in our present matter. It held in paragraph 33
as follows:-
“
Pertaining
to the chain evidence the gathering of the samples and the marking
and safekeeping thereof they were dispatched to the
laboratory,
whilst not dealt with in the s212 statement, it follows that the
chain evidence regarding those issues was not proved.
Accordingly, in view of the lack of the said linking chain evidence,
the s 212 statement in any event became irrelevant and inadmissible
evidence. It should therefore have been disregarded by the
trial court”
.
The
existence of that unexplained lacuna has the effect of being the
catalyst that breaks the chain. I hold the same views
as those
expressed by the learned judges and that the evidence of the state in
this regard did not pass the legal muster.
[25]
These circumstances create doubt in the integrity and fairness of the
entire process. The investigation of the police
was in this
aspect a monumental failure limping from one disaster to the next.
Their lackadaisical approach is disheartening.
[26]
It is also an established fact that the duo of Mohale and Tsotetsi as
well as other six (6) or so unidentified policemen descended
on the
residence of accused number 2. After receiving the necessary
permission they broke the door and entered it.
They removed a
number of items and even went to the extent of taking photographs.
This is contained in
Exhibit “N”
of the
proceedings before my sister Ebrahim, J. The oral evidence
presented in court is inconsistent with the photographs.
It
appears that there were more items removed than what is shown in the
photo album. Those items were transported to the
police station
in two (2) separate loads in police vans. Once again the laxity
of the control required reared its ugly head.
The two (2)
investigators did not watch this process like a hawk. It
appears that the unidentified policemen were left to
guard over the
property without any supervision or accountability to anyone.
It boggles the mind why Tsotetsi and Mohale
jolt into action
selective memory to remember everything else but who are those
colleagues that accompanied them on the day in
question. Are
they hiding something or protecting someone?
[27]
The list of the property was compiled in a flippant manner apparently
at the police station. Is there a reason why it
was not done
there at the scene of their discovery? Some property was
removed for absurd reasons. The bed was removed
because it
looked “
too
new”
.
There is no basis for this conclusion except to regard it as shallow
reasoning. Some shoes and packets of tobacco
were considered
too many. These items were not recorded anywhere and no proper
explanation for such a failure was provided
by any of them. The
identification of the recovered property was also a disastrous
process. The items were left lying
on the floor in no order at
all and in some cases even in the charge office. They returned
some items to the complainants
and retained others. The
question is:
Why
such an unequal treatment?
[28]
In the previous proceedings the warning statement deposed by accused
number 2 before one Lieutenant Borotho was admitted and
marketed
Exhibit
“P”
.
Unfortunately no reasons were handed down to support that ruling.
As these are not appeal or review proceedings I
shall not deal with
the merits or demerits of the ruling.
[29]
The matter of the state not having any evidence against the accused
except it he himself or co-accused implicating himself
or each other
has been dealt with in detail by the court. The court has
repeatedly held that it is against the right to a
fair trial to
convict the accused under these circumstances. The matter is
crisply stated by Traverso, DJP in
S
v Dewani, Case Number CC15/2014 (WCC)
who found the law to be
clear
on the question that “
the
evidence of the accused – if he does not incriminate himself -
can never strengthen the State’s case, since, even
if the
accused were to be a wholly unsatisfactory witness, the court would
still be left with a weak state case which could not,
on any basis,
pass legal muster.
Given the fact that there is no evidence against accused 2 and
others, it will be a misdirection that the accused should
be called
upon to plug the gaps in the state case.
[30]
The circumstances leading to the arrest of accused number 3 are also
bizarre and laughable. Apparently he was assaulted
by the
community and rescued by the police. In his possession some 5
packets of 12 or 25 g of Boxer tobacco was found.
It appears
that this formed the basis of his linking with the offences he was
charged with. I cannot find logic in the reasoning
of Mohale
that such a small quantity of tobacco that is easily and legally
obtainable can be considered to be suspicious of being
stolen.
[31]
A further absurdity was done when the accused number 4 was arrested
for being in possession of an amplifier. Mohale could
not
explain the make of that amplifier and whether it belongs to or was
identified by any complainant. I was not given any
reason or
any evidence tendered why accused number 5 was eventually charged and
linked to any of the offences contained in the
indictment.
[32]
In the light of the above, I am of the view that no evidence upon
which a reasonable man can convict was tendered in this matter.
The state did not establish sufficient nexus to the offences that
will require the accused persons to answer any case. The
state
witnesses in particular the police officers through their conduct,
bungled their investigation. They were not only
unconvincing
but unreliable in their evidence. Both did not create a good
impression on me. They were evasive and ambiguous
in their
responses.
[33] Accordingly, I make
the following order:-
The
applications in terms of Section 174 of Act 51 of 1977 are granted
and you are all discharged.
_______________
MATHEBULA,
J
On
behalf of The State:
Adv. R Hoffman
Instructed
by:
Director of Public Prosecutions
On
behalf of Accused 1 & 3:
Adv. B Daffue
Instructed
by:
Legal Aid,
Bloemfontein
On
behalf of Accused 2, 4 & 5:
Adv. M M Steytler
Instructed
by:
Legal Aid,
Bloemfontein
/roosthuizen