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[2016] ZAKZPHC 64
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Ngubane v S (AR345/2013) [2016] ZAKZPHC 64 (26 April 2016)
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IN THE HIGH
COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
NOT REPORTABLE
CASE NO:
AR345/2013
In the
matter between:
NKOSIYABONGA
MICHAEL
NGUBANE
...................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram : Koen, van Zyl et Seegobin JJ
Heard : 29 January 2016
Delivered : 26 April 2016
ORDER
On appeal
from the KwaZulu Natal High Court, Durban, (before Ncube AJ, sitting
as a court of first instance):
The
appellant’s appeal against conviction and sentence is
dismissed.
JUDGMENT
SEEGOBIN J
(Koen et van Zyl JJ concurring):
[1] The
appellant, Nkosiyabo Michael Ngubane, was one of two accused who was
arraigned before Ncube AJ in the High court sitting
at Durban, on one
count of murder which was to be read with section 51 and Schedule 2
of the
Criminal Law Amendment Act 105 of 1997
. The two were
alleged to have unlawfully and intentionally killed one
Zithulele
Wiseman Mshibe
, an adult male (the deceased) on 1 March 2011 at
Yellowood Park in the district of Durban.
[2] The
appellant and his co-accused were legally represented. They pleaded
not guilty to the charge and elected to remain silent.
At the
close of the State’s case the appellant’s co-accused was
found not guilty and discharged. At the conclusion
of all the
evidence the appellant was found guilty. He was sentenced to
life imprisonment.
[3] Leave to
appeal was applied for and granted by the court
a
quo on 18
March 2013. Although leave to appeal was applied for against
both conviction and sentence, the ruling of the trial
court is not
entirely clear as it seems to relate to conviction only. I will
assume for purposes of this appeal that leave
was granted in respect
of conviction and sentence. As far as the conviction is
concerned, leave to appeal was granted on
two issues only, the
first
was whether a court of appeal may find that the evidence of the
pointing out should not have been admitted, and the
second
was
whether the circumstantial evidence was not sufficient to corroborate
the appellant’s pointing out.
[4] The gist
of the State’s case was that the deceased was a Councilor in
the eThekwini Region and a member of the African
National Congress
(the ANC). There were tensions between him and certain other
members of the ANC. The appellant, his
co-accused and another
companion were hired by a certain person to kill the deceased for
reward. At about 21h00 on Tuesday
1 March 2011 the deceased
returned to his home after having attended a zone meeting in Umlazi.
As he entered his yard in
his motor vehicle the assailants, who had
lain in wait for him, opened fire shooting him several times.
They then fled the
scene. The deceased drove his vehicle to
Blamey Road in Montclair where he requested help from a passing
motorist who drove
him to the St. Augustine Hospital. The deceased
died soon after arrival at the said hospital. The post-mortem
examination
established that his death was caused by ‘multiple
gunshot wounds to the chest and abdomen’. The State
alleged
that the appellant and his companions acted in pursuance of a
common purpose to kill the deceased.
[5] At the
commencement of the trial on 5 March 2013, Mr De Klerk, who
represented the State, informed the court that insofar as
the
appellant was concerned, the State intended relying on the evidence
of a pointing out made by him to a police officer.
The State
also intended calling the evidence of other witnesses who were in the
vicinity of the shooting at the time but whose
evidence did not go so
far as to identify the perpetrators involved. Their evidence
was said to be purely circumstantial
in nature. It is this
evidence which forms the subject matter of the issues which arise in
this appeal.
[6] In
the course of the trial the appellant made certain formal admissions
in terms of section 220 of the Criminal Procedure
Act 51 of 1977 (the
CPA). These related,
inter alia
, to the identity of the
deceased, the date of the incident being 1 March 2011 and the fact
that the deceased was shot at 5 C R
in Y P. There was no
dispute that this was the residential address of the deceased.
[7] I start
with the circumstantial evidence. The witness
S M
is the
sister of the deceased’s wife. She testified that on 1
March 2011 she was at the deceased’s home at 5
C R in Ye P.
The deceased was not in at the time as he was attending a meeting in
his capacity as a ward Councilor.
At about 20h00 the witness
and her sister (the deceased’s wife) heard the garage door
opening. Immediately thereafter
she heard the sound of more
than five gunshots. When she peeped through the window she saw
that the deceased’s vehicle
door was opening and closing.
She also observed his vehicle taking off. She was unable to say
who had fired the shots.
She confirmed that the vehicle
depicted in photograph 12 of Exhibit “C” belonged to the
deceased. There was no
dispute that the vehicle in question was
a silver Toyota Fortuner.
[8] On 1
March 2011 the witness
B W Z M
was driving from Montclair.
He approached a robot-controlled intersection which was close to a
Kentucky Fried Chicken (KFC)
outlet. As the robot was red for
him he stopped. The deceased, who was covered in blood,
approached him crying out
for help. The deceased requested that
he be conveyed to the St. Augustine Hospital. Mr M duly
conveyed the deceased
to the said hospital and handed him over to the
hospital staff. He left his contact details with the hospital
staff.
Later that evening he received a call to say that the
deceased had passed on. Mr M confirmed that the deceased’s
motor
vehicle, the silver Toyota Fortuner referred to above, was
parked in the far left lane near the KFC outlet.
[9] At about
21h35 on the evening in question Warrant Officer
Craig Robin Inggs
was called out to attend to an attempted hijacking incident. He
proceeded to the corner of Blamey and South Coat Roads in
Clairwood
and there, opposite the KFC outlet, he spotted a silver Toyota
Fortuner motor vehicle parked in the middle lane with
its lights on.
The key was still in the ignition slot but the engine was turned
off. He noticed bullet holes on the
driver’s side,
predominantly on the driver’s door. A further bullet hole
was seen on the inside of the front
passenger door indicating that
the shot was fired from the inside. The left passenger door was
damaged as was the right front
fender. There was blood on the
driver’s as well as the passenger’s seats.
[10] At about
22h00 Warrant Officer
Ramsamy
proceeded to the deceased’s
house to attend to a shooting incident. The deceased’s
wife made a report to him.
On checking the premises he found eight
spent 9mm cartridges and one projectile.
[11] As I
mentioned already, the only evidence implicating the appellant
directly in the commission of the offence, consisted of
a pointing
out together with certain utterances made by him during the course of
the pointing out. It was common cause that
the pointing out was
made to a Captain
Auerbach
on 10 March 2011. However, by
the time the trial commenced on 8 December 2011, Captain Auerbach had
died. In the trial-within-a-trial
that followed and quite apart
from the various policemen and the doctor who testified therein, the
State sought to rely on the
evidence of Warrant Officer
Nomvalo
who acted as an interpreter for Captain Auerbach at the time of the
pointing out. Warrant Officer Nomvalo testified on two
occasions, first in the trial-within-a-trial and later in the main
trial.
[12] The
State also relied on the evidence of Captain
Mafuleka
who was
the driver of the motor vehicle which conveyed Captain Auerbach,
Warrant Officer Nomvalo and the appellant at the time.
It also
called the evidence of Sergeant
Nzama
who was the official
photographer employed by the Local Criminal Record Centre and who
took the photographs of the pointing out
as contained in Exhibit
“N”.
[13] The
appellant testified in the trial-within-a-trial. He raised two
objections to the pointing out; the
first
was that he did not
make it freely and voluntarily, and the
second
was that the
statement recorded by Captain Auerbach in Exhibit “G11”
was not his. After the trial-within-a-trial
the trial court
found that the State had proved that the pointing out by the
appellant and the admissions recorded by Captain Auerbach
were made
freely and voluntarily.
[14] I do not
intend, in this judgment, to restate the law pertaining to pointings
out. For the purposes of this judgment
the reference to certain
basic principles will suffice. In
S v
Sheehama
[1]
it was held that a pointing out is essentially a communication by
conduct. If the pointing out is relevant and is not accompanied
by an exculpatory explanation by the accused person, it is a
statement that he has knowledge of the relevant facts which
prima
facie
operate to his disadvantage
[2]
.
In an appropriate case a pointing out amounts to an extra-curial
admission and as such the common-law rule, now embodied
in s219A
[3]
of the CPA applies, namely, that it must have been made freely and
voluntarily.
[15]
Notwithstanding the safeguards contained in s219A, any evidence which
violates an accused’s person’s constitutional
rights will
be excluded
[4]
.
To the extent that it is relevant herein, s35 (1) and (2) of the
Constitution provide:
“
(1)
Everyone who is arrested for allegedly committing an offence has the
right –
(a) to remain silent;
(b) to be informed promptly –
(i) of the
right to remain silent; and
(ii) of the
consequences of not remaining silent;
(2) Everyone who is detained, including
every sentenced prisoner, has the right –
(b) to choose, and to consult with, a
legal practitioner, and to be informed of this right promptly;
(c) to have a
legal practitioner assigned to the detained person by the state and
at state expense, if substantial injustice would
otherwise result,
and to be informed of this right promptly.”
[16]
Section 35(5) of the Constitution provides that:
“
Evidence obtained in
a manner that violates any right in the 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.”
[17]
With reference to the provisions of s35(5),
supra
,
the SCA in
S v Tandwa and Others
[5]
,
said the following:
“
The notable feature
of the Constitution's specific exclusionary provision is that it does
not provide for automatic exclusion of
unconstitutionally obtained
evidence. Evidence must be excluded only if it
(a)
renders the
trial unfair; or
(b)
is otherwise detrimental to the
administration of justice. This entails that admitting impugned
evidence could damage the administration
of justice in ways that
would leave the fairness of the trial intact: but where admitting the
evidence renders the trial itself
unfair, the administration of
justice is always damaged. Differently put, evidence must be excluded
in all cases where its admission
is detrimental to the administration
of justice, including the subset of cases where it renders the trial
unfair. The provision
plainly envisages cases where evidence should
be excluded for broad public policy reasons beyond fairness to the
individual accused.
In
determining whether the trial is rendered unfair, courts must take
into account competing social interests. The court's discretion
must
be exercised “by weighing the competing concerns of society on
the one hand to ensure that the guilty are brought to
book against
the protection of entrenched human rights accorded to accused
persons. ...”
[18]
In the present matter and quite apart from the admissibility
requirements contained in s219A, the State also bore
the
onus
to prove beyond a reasonable doubt that the knowledge demonstrated by
the appellant during the pointing out, could only have been
acquired
by him through his participation in the alleged offence
[6]
.
[19] In light
of the issues which arise on appeal it is necessary to examine
whether the trial court was justified in arriving at
the conclusion
which it did. As I understand the argument advanced by Mr
Makutu
on behalf of the appellant, it seems to be premised on
two bases: the
first
is that the trial court ought not to have
relied on the evidence of the interpreter, Warrant Officer Nomvalo,
whose evidence was
hearsay regarding what had transpired between the
appellant and the late Captain Auerbach during the pointing out; the
second
is that the appellant’s rights to dignity and
self-incrimination were violated. The latter argument was
premised on
the fact that certain nude photographs of the appellant,
presumably to show the absence of any injuries, were included in the
album
of photographs. I will return to this aspect later.
[20]
Turning to the pointing out itself, the evidence presented by the
State established the following:
[20.1] Captain
Hlongwa
, the Investigating Officer, testified that the
appellant was arrested during the evening of 9 March 2011 by himself
and Warrant
Officer
Ramara
. The appellant’s
constitutional rights were fully explained to him before the arrest
was effected. These rights
included his right to remain silent
and the right to legal representation. He was also informed
that whatever he said will
be reduced to writing and may be used
against him in a trial. The appellant was thereafter taken to
an office at the Cato
Manor Police Station where he was questioned.
In the course of the questioning the appellant provided certain
information
which pointed to the involvement of other suspects in the
commission of the offence. While some effort was made to
immediately
locate these suspects, it is not entirely clear from
Captain Hlongwa’s evidence whether they were in fact arrested
that evening.
However, in the course of the questioning the
appellant started divulging certain information about his own
involvement in the
matter. His constitutional rights were again
fully explained to him, especially those relating to legal
representation.
He indicated that he did not require a lawyer
at that stage. He was asked whether Captain Hlongwa could
arrange for a neutral
person to record a statement from him or to do
a pointing out. The appellant indicated that he had no
objection to this.
According to Captain Hlongwa the appellant
was not assaulted at any stage.
[20.2] Arrangements
were then made with Captain Auerbach from the Wentworth Police
Station to conduct a pointing out because,
according to Captain
Hlongwa, that is what the appellant elected to do. The
pointing out was arranged for the 10 March
2011. It was not
disputed that Captain Auerbach was completely independent since he
was stationed at the Wentworth Police
Station. Furthermore, he
knew nothing about the matter nor was he involved in the
investigation in any way. The following
morning Captain
Mafuleka and Warrant Officer Mvuyane conveyed the appellant to Dr
Vawda,
the district surgeon, to be examined. After the
examination by Dr Vawda the appellant was taken to Captain Auerbach
in Wentworth.
As I pointed out already, it was Captain Mafuleka
who thereafter drove the motor vehicle which conveyed Captain
Auerbach, Warrant
Officer Nomvalo and the appellant for purposes of
the pointing out.
[20.3] Warrant Officer
Nomvalo is a policeman with 23 years of experience. He was
stationed at the Lamontville Police Station
at the time. As
part of his duties he often acted as an interpreter for many of his
non-Zulu speaking colleagues. There
was no dispute that Warrant
Officer Nomvalo was not part of the investigation team nor did he
know anything about the offence in
question. To that extent he
was completely independent.
[20.4] Warrant
Officer Nomvalo confirmed that on 10 March 2011 he assisted the late
Captain Auerbach in interpreting from
English into Zulu and
vice
versa
in a pointing out involving the appellant. He
confirmed that apart from himself as well as Captain Auerbach and the
appellant,
a photographer was present at all times and took
photographs before the interview commenced, then during the pointing
out itself
and when they finally returned to the Wentworth Police
Station. In relation to the pointing out forms, Exhibit “G1”,
he confirmed that he signed the document and further confirmed that
everything which appears in that document was interpreted by
him as
the questions were posed by Captain Auerbach and as the responses
were given by the appellant. He confirmed that Captain
Auerbach
fully explained to the appellant his constitutional rights which were
then interpreted by him and explained to the appellant.
The
appellant’s responses thereto appear on the first and second
pages of the document.
[20.5] As for the
pages dealing with the actual pointing out and what was said by the
appellant at the time, he confirmed
that everything recorded therein
by Captain Auerbach was told to him by the appellant and interpreted
to Captain Auerbach.
Finally, and perhaps importantly, he
confirmed that after the pointing out was concluded, Captain Auerbach
read everything back
to the appellant and that he i.e. Warrant
Officer Nomvalo interpreted the same into isiZulu. The
appellant thereafter appended
his thumbprints to the document.
He also placed his initials next to the thumbprints and signed the
document. Warrant
Officer Nomvalo in turn placed his initials
next to the appellant’s thumbprints and both he and Captain
Auerbach thereafter
signed the document in the relevant places.
Warrant Officer Nomvalo testified that he interpreted according to
the best of
his ability. A signed certificate by him appears in
Exhibit “G1” in which he certified that he interpreted
truly
and accurately and to the best of his ability. None of
this evidence was materially challenged by the appellant.
[20.6] Captain
Mafuleka is a policeman with 26 years of experience. On 10
March 2011 he assisted Captain Hlongwa
by driving Captain Auerbach,
the appellant and Warrant Officer Nomvalo when the pointing out was
done. He confirmed that
the appellant bore no signs of any
injuries. He further confirmed that it was the appellant who
provided him with the directions
when they departed from the
Wentworth Police Station.
[20.7] Sergeant Nzama
testified that he was an official photographer stationed at the Local
Criminal Record Centre. He confirmed
that he assisted Captain
Auerbach in the pointing out on 10 March 2011 by taking the
photographs contained in Exhibit “N”.
[20.8] Dr Vawda examined
the appellant prior to and after the pointing out. As Dr
Vawda’s evidence shows and as is apparent
from the J88 medical
reports (Exhibits “L” and “M”) the appellant
was examined thoroughly on each occasion.
On each occasion as
well he found no signs of any injuries on the appellant.
Significantly, however, he recorded that the
appellant had informed
him that he was dragged by his leg at the time of his arrest. I
will revert to this aspect when dealing
with the appellant’s
version of events.
[20.9] When the appellant
testified in the trial-within-a-trial, he maintained that after his
arrest he was taken to the Lamontville
grounds where he was tubed and
assaulted. Thereafter he was taken to the Cato Manor Police
Station where he was further assaulted.
He was unable however
to provide any specific details about the alleged assault and
torture. He testified for the first time
that he was placed in
the boot of the police vehicle when he was taken to the Lamontville
grounds. He was unable to explain
why this was not put to any
of the police witnesses when they testified. His evidence was
superficial and sketchy.
The appellant proved to be quite an
unimpressive witness. Mr Makutu quite properly, and correctly
in my view, conceded this
in argument before us. According to
the appellant Dr Vawda never spoke to him at all nor did he examine
him. He averred
that Dr Vawda just stood on the other side of
the counter. According to the appellant, Dr Vawda was given
some forms which
he looked at. He then looked at the appellant
and began filling out the forms. The appellant even
denied telling
Dr Vawda that he was dragged by the police at the time
of his arrest. He was unable to explain why Dr Vawda would
record
something adverse to the police if it did not come from him.
[20.10] Dr Vawda had
recorded that the appellant suffered from tuberculosis.
However, when the appellant testified he denied
telling Dr Vawda
this. He was unable to explain why he failed to tell Dr Vawda
that he was assaulted and tortured by the
police. However, what
is most significant about the appellant’s version is that he
maintained that even though he was
assaulted, this did not induce him
to do a pointing out. This concession on the part of the
appellant placed his legal representative
somewhat in a quandary
because, as the record reflects, she then decided not to call a
witness who she intended to call on his
behalf. While in the
one breath he maintained that he wanted to show the police where the
deceased resided, in the next he
denied pointing out anything to
them.
[21] In the
context of what I have recounted above, it is not surprising then
that the learned Judge
a quo
ruled that the pointing out as
well as the admissions recorded by Captain Auerbach at the time, were
made freely and voluntarily,
without any undue influence, and were
accordingly admissible as evidence in the trial.
[22] Warrant
Officer Nomvalo was recalled to testify in the main trial once the
evidence of the pointing out was admitted.
On this occasion he
testified on the contents of Exhibit “G11” and what was
said by the appellant to Captain Aeurbach
when the pointing out was
done. The contents of the statement were read out by Warrant
Officer Nomvalo and while he experienced
a few difficulties with
Captain Auerbach’s handwriting, he had no difficulty in
conveying to the trial court the full import
and substance of what
was recorded at the time. The following excerpts from Exhibit
“G11” establish that the
appellant bore personal
knowledge of the offence in question thus pointing to his involvement
therein:
[22.1] At page 13 of
Exhibit “G11”, he states that the killing of
Mr
Mshibe, the deceased, was planned by himself and his companions
Sthe
Ngubane, Siphiwe Nene, Thembe Ngwenya,
and
Nyawose.
In photograph 7 of Exhibit “N” he points to an area where
the planning took place. This was next to a container
(shown in
photograph 7). It is here that they parked their motor
vehicles, a white Tazz and a bakkie in February 2011 when
the
planning took place.
[22.2] In photograph
11 of Exhibit “N”, he points to a spot near Qhilika
School from where he states they followed
the deceased on the date on
which he was killed.
[22.3] He states that the
deceased was driving a silver grey Toyota Fortuner motor vehicle.
The vehicle was riddled with bullet
holes. This piece of
evidence ties up with that of the deceased’s wife’s
sister, S M, as well as with that of
Warrant Officer Inggs who found
such a vehicle at the corner of Blamey and South Coast Roads in
Clairwood, opposite the KFC outlet.
It also ties up with the
evidence of Mr M who came to the deceased’s assistance and
conveyed him to hospital.
[22.4] He further states
that he dropped off Themba Ngwenya and Sthe Ngubane next to house 4 C
R in Y P so that they could
hide in wait for the deceased.
The spot where he says he dropped Themba and Sthe is depicted in
photograph 9 of Exhibit “N”.
[22.5] He states that he
went down the road to wait for Themba and Sthe to shoot the
deceased. He then heard several gunshots
at the deceased’s
house. This piece of evidence ties in with the evidence of
Ms
M who said that she heard more than five gunshots being fired.
This also ties in with the evidence of Warrant Officer
Ramsany
who testified that he found eight spent 9mm cartridges at the
deceased’s house. That piece of evidence also ties in with
the
chief post-mortem findings of the body of the deceased to the effect
that he died of multiple gunshot wounds.
[22.6] The
appellant’s statement also ties in with the appellant’s
own admission made by him in terms of s220
of the CPA to the effect
that the deceased was shot at 5 C R, Y P and died later that day at
the St. Augustine Hospital.
[23] The
learned Judge
a quo
found, correctly in my view, that the
evidence of Warrant Officer Nomvalo was not seriously challenged in
cross-examination.
His cross-examination was perfunctory and
merely aimed at highlighting certain words written by Captain
Auerbach which he found
difficult to decipher. There was no
suggestion whatsoever that Warrant Officer Nomvalo did not interpret
correctly to Captain
Auerbach all that was said by the appellant
during the pointing out.
[24] It would
seem to me that there was nothing fundamentally wrong with the State
calling the evidence of Warrant Officer Nomvalo
in order to prove
what was said by the appellant during the pointing out. In my
view, Warrant Officer Nomvalo’s evidence
was the best evidence
that was available at the time. In any event, I consider that
even if Captain Auerbach was alive and
in a position to testify, all
he would have been able to confirm is that the information he
recorded in Exhibits “G1”
and “G11” was
essentially information interpreted by Warrant Officer Nomvalo of
what the appellant told him
[7]
.
The information would then be hearsay. Warrant Officer Nomvalo
would then have to be called to confirm that he correctly
interpreted
to Captain Auerbach all that the appellant had communicated to him.
It is only then that the hearsay would be
eliminated
[8]
.
[25] I
further consider that while strictly speaking Warrant Officer Nomvalo
was not employed by the appellant to interpret for
him, he became the
appellant’s representative as well when he agreed to assist
with the interpretation. The appellant
did not object to
Warrant Officer Nomvalo’s presence or to his assistance at the
time. The effect of this is that the
admissions recorded by
Captain Auerbach as they were made to him by Warrant Officer Nomvalo
during the interpretation of the appellant’s
words, are
admissible against the appellant
[9]
.
Inasmuch as the appellant may wish to deny that what he told Captain
Auerbach emanated from him, this is not borne out by
his own evidence
as appears at page 152 of the record, lines 21-28, where he states
the following:
“
The notes that were
made by Captain Auerbach, did you tell him what to write? --- Well,
some of the things that I told the captain
were not the things that
were said that I should say to the captain.
I just said
things that came from me
, I did not say some of things that
Hlongwa and others said that I should say.”
[my emphasis]
[26] All in
all I am satisfied that the trial court acted correctly in admitting
the evidence of the pointing out made by the appellant
on 10 March
2011. While nothing was discovered as a consequence thereof,
the information provided by the appellant sufficiently
corroborated
the circumstantial evidence provided by the other witnesses who
testified. The information further served to
establish that the
appellant was integrally involved in the planning of the deceased’s
death and shared a common purpose
with the others who were involved.
In the statement to Captain Auerbach the appellant even goes so far
as to provide a reason
why the deceased was killed. That reason
seems to be that the Councilor, Mr
Nyawase,
had promised the
appellant and his co-perpetrators houses, however the deceased was
going to take Mr Nyawase’s place in the
Council in Ward 79.
[27] In the
face of a strong
prima facie
case against him, the appellant
elected not to testify in his defence. He simply closed his
case without calling any evidence
on his behalf. While an
accused person enjoys a constitutional right to remain silent, in my
view this is no right at all
especially in a case which calls for a
direct answer from him. In
Osman v Attorney-General,
Transvaal
1998(2) SACR 493 (CC) the Constitutional Court focused
on the fact that South Africa’s legal system is of an
adversarial nature.
In paragraph 22 of the judgment it states
the following:
“
Our legal system is
an adversarial one. Once the prosecution has produced evidence
sufficient to establish a
prima facie
case, an accused who
fails to produce evidence to rebut that case is at risk. The
failure to testify does not relieve the
prosecution of its duty to
prove guilt beyond reasonable doubt. An accused, however,
always runs the risk that absent any
rebuttal, the prosecution’s
case may be sufficient to prove the elements of the offence.
The fact that an accused has
to make such an election is not a breach
of the right to silence. If the right to silence were to be so
interpreted, it would
destroy the fundamental nature of our
adversarial system of criminal justice.”
[28] The
Constitutional Court, in
S v Boesak
[10]
held in paragraph [24] that:
“
The fact that an
accused person is under no obligation to testify does not mean that
there are no consequences attaching to a decision
to remain silent
during the trial. If there is evidence calling for an answer,
and an accused person chooses to remain silent
in the face of such
evidence, a court may well be entitled to conclude that the evidence
is sufficient in the absence of an explanation
to prove the guilt of
the accused. Whether such a conclusion is justified will depend on
the weight of the evidence”.
[29] In the
circumstances, I consider that the trial court was correct in finding
that the guilt of the appellant was proved beyond
a reasonable
doubt. I see no reason to upset that finding.
[30] Before I
conclude, however, there is one aspect that requires comment and it
relates to Mr Makutu’s complaint that the
appellant’s
dignity was impaired because of the two nude photographs which
appeared in Exhibit “N”. The
inclusion of these
photographs in the album by the State was no doubt to pre-empt any
suggestion on the part of the appellant that
he was assaulted by the
police. There can be no other reason but this. While I
consider that it is highly undesirable
that these photographs were
included in the album, I do not believe that any of the appellant’s
fair trial rights were violated
in any way. I would, however,
caution the State to be a lot more circumspect in the manner in which
it deals with photographs
of this nature in future.
[31] In all
the circumstances, I conclude that the trial court was entitled,
firstly
, to admit the evidence of the pointing out made to
Captain Auerbach on 10 March 2011, and
secondly
, to find that
the circumstantial evidence had sufficiently corroborated the
appellant’s pointing out. With the acceptance
of this
evidence the guilt of the appellant was proved beyond a reasonable
doubt. It follows that the appeal against conviction
must fail.
[32] Turning
to the appeal against sentence, Mr Makutu quite fairly and properly,
in my view, accepted that the sentence imposed
was an appropriate one
in the circumstances. In my opinion contract killings by their
very nature are cold-blooded acts which
are motivated mainly by greed
and for which there can
be no
justification. These types of killings are fast becoming a
scourge in the country and must be stamped out. Accordingly,
the
sentence imposed warrants no interference on appeal.
ORDER
[33] In the
result, I make the following order:
The
appellant’s appeal against conviction and sentence is
dismissed.
KOEN J
I agree
VAN ZYL J
Date of
Hearing : 29 January 2016
Date of
Judgment : 26 April 2016
Counsel
for Appellant : WCM Maqutu
Instructed
by : Justice Centre, Durban
Counsel
for Respondent : N Mzila
Instructed by : Director of Public
Prosecutions
Pietermaritzburg
[1]
1991(2) SA 860 (A).
[2]
See the comments expressed by
the learned authors Du Toit, De Jager, Paizer, Skeen and Van Der
Merwe of the Commentary on the
Criminal Procedure Act, vol
2,
service 53, 2014, 24-68.
[3]
S219A
reads as follows:
“
(1) Evidence of any admission
made extra-judicially by any person in relation to the commission of
an offence shall, if such admission
does not constitute a confession
of that offence and is proved to have been voluntarily made by that
person, be admissible in
evidence against him at criminal
proceedings relating to that offence: Provided that where the
admission is made to a magistrate
and reduced to writing by him or
is confirmed and reduced to writing in the presence of a magistrate,
the admission shall, upon
the mere production at the proceedings in
question of the document in which the admission is contained-
(a)
be admissible in
evidence against such person if it appears from such document that
the admission was made by a person whose name
corresponds to that of
such person and, in the case of an admission made to a magistrate or
confirmed in the presence of a magistrate
through an interpreter, if
a certificate by the interpreter appears on such document to the
effect that he interpreted truly
and correctly and to the best of
his ability with regard to the contents of the admission and any
question put to such person
by the magistrate; and
(b)
be
presumed, unless the contrary is proved, to have been voluntarily
made by such person if it appears from the document in which
the
admission is contained that the admission was made voluntarily by
such person.
(2) The
prosecution may lead evidence in rebuttal of evidence adduced by an
accused in rebuttal of the presumption under subsection
(1).”
[4]
S v Pillay and Others 2004(2)
SACR 419 (SCA).
[5]
2008(1) SACR 613 (CA) (paras
116-117); see also: S v Mgwaza 2016(1) SACR 53 (SCA) and the cases
cited therein.
[6]
S v Gwevu and Another 1961(4)
SA 536 (E); S v Shabalala 1986(4) SA 734 (A) at 748-9.
[7]
R v Mutche
1946 AD 874.
[8]
Magwanyana and Others v
Standard General Insurance Co. Ltd 1996(1) SA 254 (D) at page 257.
[9]
S v Goncalves 1972(1) SA 243
(T).
[10]
2001 1 SACR 1
(CC); see also S v Boesak 2000(1) SACR 633 (SCA);
S v Chabalala 2003(1) SACR 134 (SCA) and S v Brown 1996(2) SACR 49
(NC).