About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2016
>>
[2016] ZAKZPHC 56
|
|
Ramyonyane and Another v S (AR253/15) [2016] ZAKZPHC 56 (28 June 2016)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
CASE
NO: AR253/15
DATE:
28 JUNE 2016
In
the matter between:
TSEPISO
STHEMBISO
RAMYONYANE
.........................................................
FIRST
APPELLANT
BONGINKOSI
ERIC
NYAWOSE
..................................................................
SECOND
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
Delivered
on: 28 June 2016
Kruger
J
(with Vahed J et Hemraj AJ concurring)
[1]
The Appellants were convicted, in the High Court, Pietermaritzburg,
of murder and robbery with aggravating circumstances.
The
minimum sentences were imposed, viz, life imprisonment in respect of
the conviction of murder and fifteen years imprisonment
in respect of
the conviction of robbery with aggravating circumstances. With
leave of the Court
a quo
, they appeal against their
convictions.
[2]
The State alleged that on the 17
th
October 2013, at
approximately 18h30, the Appellants and their companions entered the
home of Daniel Montague Knight (“the
deceased”) and his
partner, Dilys Elizabeth Bucher. The assailants were armed with
various weapons, including a firearm,
monkey-wrench and a hammer.
They all wore dark clothing and their faces were covered with
balaclavas. They demanded
firearms and money and in the process
began assaulting the deceased. After tying up the deceased and
Ms Bucher, the assailants
ransacked the house and fled, taking with
them various items, including a Beretta firearm, television set,
video machine, DVD player,
groceries, an Isuzu bakkie and a Toyota
Land Cruiser.
[3]
Ms Bucher later managed to free herself and she found the deceased,
who had been tied up with the clothing ties, lying in a
pool of
blood. He had unfortunately succumbed to his injuries.
The police were thereafter summoned as well as the family
doctor, Dr
Leon van Schalkwyk.
[4]
The only evidence relied upon by the State in securing the
convictions were:
(a)
A confession made by both Appellants to commissioned police officers;
(b)
A pointing out conducted by the Second Appellant and
(c)
A confession allegedly made by the First Appellant to a Mr Thabiso
Njabulo Dlamini (“Mr Dlamini”) – who was
warned in
terms of Section 204 of the Criminal Procedure Act.
[5]
The admission of the “confessions” and “pointing-out”
were challenged by the defence and this led to
a trial-within-a-trial
being held.
[6]
During the trial-within-a-trial, the Appellants alleged that they
were brutally assaulted by the police at the time of their
arrest.
It transpired from the evidence that the Second Appellant was
arrested first. This was after 6pm on the 20
th
October 2013. He alleged that he was assaulted by various
officers who demanded to know the whereabouts of the firearm and
the
vehicles. He was then handcuffed and placed in a police
vehicle. The police then proceeded to the home of the First
Appellant. At the homestead they found both the First Appellant
and Mr Dlamini. Both were assaulted and arrested.
During
the course of the assaults and in an attempt to prevent further
assaults being perpetrated upon him, Mr Dlamini pointed
out an area
where he alleged the First Appellant had buried the firearms.
The assaults upon him ceased but not against the
Appellants as he
witnessed both Appellants being further assaulted by police.
[7]
Not surprisingly, all the police officers who testified denied
assaulting either of the Appellants or Mr Dlamini. They
all
denied witnessing or being present when the Appellants and/or Mr
Dlamini were allegedly assaulted. They also did not
witness any
injuries on any of the Appellants or on Mr Dlamini. There are
numerous contradictions and inconsistencies in
the evidence of the
police officers. For reasons which will become apparent later
in this judgment, it is not necessary to
outline these contradictions
and inconsistencies in detail.
[8]
During the course of the night of the 20
th
October 2013,
the Toyota Land Cruiser was recovered. The police alleged that
the Second Appellant, who was willing and co-operative,
volunteered
to show them where the vehicle was hidden. This was
contradicted by the Second Appellant who alleged that he
was forced
to accompany the police in search of the vehicle. It transpired
that in an attempt by Constable Stock to assault
the Second
Appellant, the window of the police vehicle was broken. The
police officers, in an attempt to deny the assaults
on the Second
Appellant testified that the Second Appellant broke the window and
attempted to escape from the moving police vehicle.
This
attempt whilst he was handcuffed behind his back.
Notwithstanding this “attempt to escape”, none of the
police officers saw fit to charge the Second Appellant with this
offence.
[9]
Both Appellants and Mr Dlamini were later placed in the police
cells. The following morning (21
st
October 2013)
after a consultation with the investigating officer, the Appellants
elected to make a confession and Mr Dlamini agreed
to provide a
statement and to become a witness in terms of Section 204 of the
Criminal Procedure Act.
[10]
Prior to making and recording their confessions, both Appellants were
“examined” by Dr Leon van Schalkwyk.
This
examination took place at the police station in an office adjacent to
the charge office. It is common cause that at
least one of the
police officers who was present during the “examination”
by Dr van Schalkwyk, was alleged to have
been one of the perpetrators
of the assaults upon the Appellants. The police could offer no
plausible explanation why the
Appellants were not taken to a District
Surgeon or to an independent doctor for examination prior to and
after making the confessions.
Dr van Schalkwyk found no
evidence of any injuries, save for “slight bruising” on
the back of the First Appellant.
His findings are in stark
contrast to the evidence of Captain Zakwe (who recorded the
confession of the First Appellant) who testified
that it was clearly
obvious that the First Appellant was in pain and that he had
difficulty using his hand.
[11]
The Court
a quo
ruled that the “confession” made
by the Second Appellant was admissible as evidence. The
“pointing-out”
by the Second Appellant and the
“confession” by the First Appellant were ruled
inadmissible. In reaching this
conclusion, the Court
a quo
found that the incorrect form was used to record the confession of
the First Appellant and that the pointing-out “did not
comply
with the requirements for the admissibility of the admission”.
Notwithstanding an acceptance by the Court
a quo
that,
contrary to the evidence of the police, the Second Appellant was
indeed assaulted, the Court
a quo
was of the view that his
confession was not as a result of the assault. This, with
respect, is contradictory. The evidence
clearly shows the
nature of the assaults perpetrated upon the Second Appellant which
assaults led him to conduct the pointing-out.
There was no
explanation forthcoming to explain his sudden change of heart a few
hours later. The “pointing-out”
and “confession”
were all part of a continuing exercise facilitated by the constant
assault and threats of assaults
by the police officers. If the
assaults were not perpetrated on the Second Appellant for the
purposes of extracting a confession
and a pointing out from him, why
was it then necessary to assault him? The evidence did not
reveal that he attempted to flee
from the police at the time of his
arrest or at any later stage. Having concluded that the Second
Appellant and Mr Dlamini
were severely assaulted, the Court
a quo
ought, in my view, to have ruled the “confession” made by
the Second Appellant to be inadmissible.
[12]
Notwithstanding its finding of assault perpetrated upon the Second
Appellant and Mr Dlamini, in the face of denials by the
police
officers, the Court
a quo
nonetheless found that
all
the State witnesses (including the police and Dr van Schalkwyk)
“acquitted themselves well” and that “they gave
evidence in a clear, concise and bold manner”. I
disagree. The evidence reveals that the police officers were
pathetic witnesses and the manner in which it appears that they
conducted themselves, both at the time of the arrest of the
Appellants
and in testifying in Court, can only be described as
disgraceful. They deliberately lied in their attempts to
support each
other.
[13]
The only evidence remaining against the First Appellant was his
alleged “confession” to Mr Dlamini. As stated earlier
in
this judgment, Mr Dlamini testified that he was severely assaulted by
the police. As a result he pointed out an area which had
been
recently dug up and which led to the recovery of certain items.
The police officers denied that they assaulted Mr Dlamini
(and the
First Appellant who was with him) at the time of his arrest.
However, the photographs taken by Mr Nkosinathi Dlamini
corroborated
the evidence of Mr Dlamini that they were indeed assaulted.
[14]
Of importance is Mr Dlamini’s testimony that at the time he
made his “Section 204” statement, he was still
afraid of
the police and in particular that he would be further assaulted.
He also denied that his constitutional rights
were read and explained
to him. When questioned by the defence counsel and the Court,
the following exchange resulted:
“
CROSS-EXAMINATION
BY MR RADEBE
Only one question,
M’Lord. Sir, if you were not arrested, or you were not also
assaulted, would you have volunteered
to make a statement and if so,
agreed to come and testify?
MNGUNI
J
Would you have come out on your
own accord, and testify? Made a statement to the police about
the incident - - - No, I would
not have done that on my own accord,
M’Lord.” (page 326 lines 19 to 24)
[15]
An analysis of Mr Dlamini’s evidence also shows that he was
very reluctant to testify. He continually answered
questions by
stating that he could not recall clearly. This, particularly in
response to questions regarding details of what the
First Appellant
had allegedly confessed to him. He repeatedly stated that he
could not recall clearly and could not remember
and was virtually
cross-examined by the prosecutor in an attempt to extract this
evidence. What is of concern is that after
the Court had taken
the short adjournment, Mr Dlamini seemed to have regained his memory
and testified in detail of what the First
Appellant had allegedly
confessed to him. It is indeed highly suspicious that he was
“reminded” of the need to
testify against the First
Appellant.
[16]
I am of the view that the “confession” to Mr Dlamini and
indeed his statement and evidence in Court, were not freely
and
voluntarily obtained. As a result the Court
a quo
ought to
have disregarded same.
[17]
In the result there is no evidence against the Appellants and they
ought, in my view, to have been acquitted. The State, on
appeal, has
rightly conceded that the Appellants were wrongly convicted.
[18]
In the result, the appeal succeeds and the convictions and sentences
against both Appellants is hereby set aside.
KRUGER
J
VAHED
J
HEMRAJ
AJ
DATE
OF HEARING: 3 June 2016
DATE
OF JUDGMENT: 28 June 2016
COUNSEL
FOR THE APPELLANT: E X Sindane
COUNSEL
FOR THE RESPONDENT: A Watt