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[2016] ZAKZPHC 45
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Ngubane v S (AR345/2013) [2016] ZAKZPHC 45 (26 May 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
CASE
NO: AR345/2013
DATE:
26 APRIL 2016
NOT
REPORTABLE
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…. Road
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
Sibonga
Mthembu
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….. Road in Y…. 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
Bheki Wiseman Zazi Mathonsi
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 Mathonsi 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 Mathonsi 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, Sibonga Mthemba, 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 Mathonsi 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….. Road 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 Mthembu 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…… Road,
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).