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[2016] ZAKZPHC 63
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Nyathikazi v S (AR194/15) [2016] ZAKZPHC 63 (28 June 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
CASE
NO: AR194/15
DATE:
28 JUNE 2016
NOT
REPORTABLE
In
the matter between:
SBONGISENI
“WALA”
NYATHIKAZI
.........................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram
: Seegobin, Poyo Dlwati J et Hemraj AJ
Heard
: 27 May 2016
Delivered
: 28 June 2016
ORDER
On
appeal from the KwaZulu-Natal Division of the High Court, Durban
(Balton J, sitting as a court of first instance):
The
appeal is upheld and the convictions and sentences are set aside.
JUDGMENT
SEEGOBIN
J (Poyo Dlwati J et Hemraj AJ concurring):
[1]
The appellant was indicted before Balton J and assessors sitting in
the High Court, Durban, on one count of murder and three
counts of
rape. On
28 February 2008 the appellant was convicted as
charged. On the murder count he was sentenced to life
imprisonment and on
each of the rape counts he was sentenced to 20
years imprisonment.
[2]
The appellant’s application for leave to appeal against both
conviction and sentence was refused by the court
a quo
.
The appellant was granted such leave by the Supreme Court of Appeal
on 31 March 2014 and it is on that basis that he is
before us on
appeal.
[3]
The gist of the State’s case was that on the evening of 6
January 2007 the appellant visited the deceased at the deceased’s
place of residence. The deceased subsequently left her place of
residence in the company of the appellant. The appellant
and
the deceased were later joined by three companions. They then
proceeded to a nearby bush to smoke dagga. After
they had
smoked dagga the appellant and his three companions (collectively
referred to as the assailants) each decided to rape
the deceased
once. The deceased died on the scene, the cause of death was
‘undetermined’. The assailants
then fled the scene.
The State further alleged that notwithstanding the fact that the
assailants each raped the deceased once only,
the appellant was
guilty of three counts of rape by virtue of the following:
·
The appellant was guilty of one count of
rape as a perpetrator in that he had sexual intercourse with the
deceased once.
·
He was guilty of the remaining two counts
of rape in that he facilitated the rape of the deceased by the other
assailants by remaining
in the vicinity, keeping watch and preventing
resistance or escape by the deceased.
·
He and his companions acted in furtherance
of a common purpose to commit the crimes alleged in the indictment.
[4]
The State case rested on the evidence,
firstly
, of several
witnesses who last saw the deceased alive on the 6 January 2007, and
secondly
on the evidence of a pointing out and statement made
by the appellant to a police captain after his arrest. As far
as the
latter evidence is concerned the trial court found that the
appellant had failed to discharge the
onus
on him of showing
that the statement made by him during the pointing out was not made
freely and voluntarily and when he was in
his sound and sober
senses. It is this aspect of the evidence that formed the
subject matter of the appeal and against which
a detailed and wide
ranging attack was levelled by
Mr Mngadi
on behalf of the
appellant. It was contended,
inter alia
, that there was
no objective evidence to prove that the appellant was properly warned
of his constitutional rights from the time
of his arrest until he was
placed in the hands of
Captain Chetty
who conducted the
pointing out. Nor was there any evidence to show that at the
time of his interrogation and/or before the
pointing out, the
appellant was advised that he could elect to make a statement before
a magistrate. There was also no evidence
to show that the
appellant was advised that he had a right not to incriminate
himself. It was further contended that the
appellant was not
taken to a doctor before and after the pointing out in order to rule
out any allegations of assault against the
police.
Lastly
,
and perhaps importantly, it was contended that the court
a quo
had misconstrued the incidence of the burden of proof in a
trial-within-a-trial. From what appears hereunder I consider
that the arguments raised by Mr Mngadi are not without merit.
[5]
I start with the circumstantial evidence first. Inspector Cele
from the Hillcrest Police Station attended the scene on
9 January
2007, where the decomposed body of the deceased was found. Her dress
had been lifted to her chest, and next to her body
were items of
underwear and a pair of cycling pants. A blue cap was found some
distance from the body. He was present when photographs
of the scene
were taken.
[6]
The deceased’s boyfriend,
Mr M
, testified that he and
the deceased had been lovers for three years. He knew the appellant
from the area. On
6 January 2007 he was seated in the yard of the
N homestead when he saw the deceased walking past on the footpath
with three other
women. He also saw the appellant walk past in the
company of other people. He was shown a photograph of the scene
depicting a blue
cap and he said it was the appellant’s cap
that he was wearing on that day. Under cross-examination, he
said that the
appellant fetched the deceased from the N homestead and
left with her at about 19h15. When the appellant arrived, he was
talking
to the deceased calling her “mother”, “aunt”
and “sister”. He was sitting on the same bench
as the
deceased and did not show her any respect because he was touching her
and hugging her.
[7]
Mr M testified that he went to the deceased’s sister and
complained that he did not like what was happening. He said he
conveyed his objections to the appellant who replied “you won’t
do anything to me”. He further testified that
he did not see
any writing on the blue cap that was being worn by the appellant. He
was some five metres away and it was dark.
He was adamant that the
blue cap at the scene, as depicted in the photograph, was the same as
that worn by the appellant.
[8]
He said he could not stop the deceased from going with the appellant
or do anything because he was ill with tuberculosis. The
deceased, he
said, was not protesting when she left with the appellant. She was
drunk and she was singing. When he realised she
had not returned he
enlisted the help of others to look for her.
[9]
Ms N,
the sister of the deceased, testified that she lived in
close proximity to the deceased. She saw the appellant arrive at the
homestead
from the same feast that her sister had been attending.
When the witness went to bed she heard a child crying and when she
went
outside, she saw the deceased and the appellant walking on the
road with the deceased’s child following them, crying. She
caught up with them and said to the deceased that they should go
home. She grabbed the deceased by her arm, but the deceased broke
away. She left the deceased standing with the appellant on the road.
She said the appellant was wearing a blue cap which was the
same as
that depicted on a photograph of the scene. Under
cross-examination she said it was dark when she caught up with
them
and could not see them clearly. She was about two meters away from
them. She had seen the blue cap being worn by the appellant
during
the day.
[10]
A trial-within-a-trial was held to determine the admissibility of a
pointing out made by the appellant to Captain Chetty of
the South
African Police Services. The court found that the appellant had been
unable to discharge the
onus
on him showing that the statement
and the pointing out were not freely and voluntarily made by the
appellant when he was in his
sound and sober senses. The statement
was admitted into evidence and the evidence led at the trial within a
trial was incorporated
into the main trial.
[11]
Doctor Pillay
testified that he conducted the post-mortem
examination on the body of the deceased. He was unable to
determine the cause
of death because of the advanced decomposed state
of the body. He recorded deep scalp bruising over the occiput, which
is the back
of the head as well as ante mortem bruising over the
right supraorbital ridge and maxilla. There were also abrasions on
the left
arm and forearm, but these would not have contributed to
death. He said the main problems were the injuries to the head.
[12]
The appellant testified that on 6 January 2007, he attended a feast
at his parental home. He arrived with other persons at
about 10h00.
He together with his family drank traditional beer and sang. At the
feast there was an argument about the soccer match
and he left with
the same people he had arrived with at about 17h00 and went home.
Towards the afternoon, he was watching a soccer
match on television
with his girlfriend. He denied going to the deceased’s home.
[13]
When the appellant was cross-examined, he said he could not dispute
that the deceased was at the feast but he had not known
her. He was
cross-examined about his statement at the pointing out that he had
called “Sissy” to smoke dagga with them.
He said that did
not refer to the deceased. He thought the interpreter had mentioned
his sister. He said he only heard about the
deceased’s death
when he was arrested some three months after the incident. He did not
possess a cap. He maintained that
he was forced to do a pointing out.
The court
a quo
dealt with the reasons for the finding made at
the conclusion of the trial-within-a-trial in the main judgment. The
court found
that the
onus
was on the appellant to show on a
balance of probabilities that he had been assaulted to do the
pointing out and that he had failed
to discharge the
onus
.
[14]
The learned Judge, having admitted the statement, relied on its
contents to find that the appellant was part of a group who
acted in
furtherance of a common purpose to rape and kill the deceased. She
found that the group unlawfully and intentionally caused
the death of
the deceased, either by grabbing her tightly at the neck or
strangling her during the rape. The learned Judge again,
relying on
the contents of the statement, further found that the appellant and
two others had intercourse with the deceased. The
court also relied
on the contents of the statement that “Sissy” died after
they had sexual intercourse with her.
[15]
The issue of the
onus
as stated by the court
a quo
with
regard to the trial-within-a-trial amounts to a misdirection in the
light of the decision of the Constitutional Court in
S v Zuma &
Others
1995(1) SACR 568.
[16]
As I pointed out already the litany of complaints with regard to the
lack of evidence of any constitutional rights being explained
to the
appellant is not without merit. Indeed, such evidence is markedly
absent in the case presented by the State.
Ms Watt
, who
appeared for the respondent, was constrained to agree that the State
failed to place any of this evidence before the court
a quo
.
[17]
In
S v Magwaza
2016(1) SACR 53 (SCA), the court
referred to the observations by Froneman J in
S v Melani and
Others
1996(1) SACR 335 (E):
“
the
right to consult with a legal practitioner during the pre-trial
procedure and especially the right to be informed of this right,
is
closely connected to the presumption of innocence, the right of
silence and the proscription of compelled confessions….these
are necessary procedural provisions to give effect and protection to
the right to remain silent and the right to be protected against
self-incrimination
.
”
[18] Ponnan JA in
State v Magwaza supra
made the following comments:
“
[17]
It is clear that the rights in question exist from the inception of
the criminal process, that is, from arrest, until its culmination
(up
to and during the trial itself)……
It is important to
appreciate that a constitutional right is not to be regarded as
satisfied simply by some incantation which a
detainee may not
understand. The purpose of making a suspect aware of his rights is so
that he may make a decision whether to exercise
them, and plainly he
cannot do that if he does not understand what those rights are (
R
v Cullen
(1993) 1 LRC 610(NZCA) at 613 G-I).
It must therefore
follow that the failure to properly inform a detainee of his
constitutional rights renders them illusory…..
[18]
If it is accepted, as I think it must be, that the appellant was not
properly warned of his constitutional rights, then it
must follow
that there was a high degree of prejudice to him because of the close
causal connection between the violation and the
conscriptive
evidence. For, plainly, the rights infringement resulted in the
creation of evidence which otherwise would not have
existed.
”
[19]
The State was represented during the trial by a senior state
advocate. It was incumbent upon him to place the evidence pertaining
to the constitutional warnings before the court. He led no such
evidence. More seriously, he misstated to the court that the onus
in
the trial within a trial, was upon the accused, and indeed conducted
the entire matter on that incorrect premise. It is inconceivable
that
he was unaware of the judgment of the Constitutional Court in
S v
Zuma
1995(2) SA 642 (SCA) which clearly states that the
onus
is on the state to be discharged on proof beyond reasonable doubt.
[20]
In terms of the Code of Conduct for members of the National
Prosecuting Authority published in Government Gazette No.33907
on 29
December 2010, prosecutors must inter alia;
“
A
….
(f)
Strive to be well-informed and to keep abreast of relevant legal
developments; ……..
C
…….
(i)
Assist the court to arrive at a just verdict and, in the event of a
conviction, an appropriate sentence based on the evidence
presented.
D
…..2
(h)
Examine proposed evidence to ascertain if it has been lawfully or
constitutionally obtained;
(i)
refuse to use evidence which is reasonably believed to have been
obtained through recourse to unlawful methods which constitute
a
grave violation of the accused person's human rights and particularly
methods which constitute torture or cruel treatment
.”
[21]
Regrettably, the state failed to adhere to this code of conduct in
the present matter.
[22]
Returning to the convictions, with regard to the conviction for
murder, the learned Judge found that death occurred because
of
strangulation at some stage during the rapes. This is based on
the statement made by the appellant that one of the persons
in the
group “grabbed the deceased around her neck and held tightly”.
There is no medical evidence to support this
finding. On the
contrary, Dr Pillay records no injury to the neck structures in the
post mortem report, Exhibit “D”.
The cause of the
injuries to the head of the deceased cannot be attributed to any
particular cause. To find that they were sustained
during the rape or
at any stage thereafter would be to enter the realms of speculation.
[23]
The only reliable evidence is that the deceased was seen leaving with
the appellant whilst in a drunken state, singing and
resisting her
sister’s efforts to bring her back home. Her body was found
three days later approximately 150 metres away
from her home. The
only nexus to the appellant thereafter is to be found in his
statement made during the pointing out. Absent
that, there are huge
lacunae in the state’s case which cannot be cured by
conjecture. To draw any inferences would have one
take quantum leaps
in logic which are not warranted on the evidence.
[24]
The convictions are based solely on the contents of the statement
made by the appellant during the pointing out. The following
comments
of Ponnan JA in
Magwaza
,
supra
, are apposite here:
“
[21]
Both the trial court and the full court focused solely on the
voluntariness of the appellant’s conduct. Neither touched,
even
tangentially, on the Constitution’s exclusionary provision –
section 35(5) – nor appeared to appreciate,
as Van der Merwe &
Schwikkard Principles of Evidence 3 ed para 12.9.7 points out:
‘
If
an accused was not prior to custodial police questioning informed by
the police of his constitutional right to silence, the court
might in
the exercise of its discretion conclude that even though the accused
had responded voluntarily, all admissions made by
the accused to the
police should be excluded in order to secure a fair trial.
The
exercise of the relevant discretion leads to the conclusion, in my
view, that those factors which justify exclusion materially
outweigh
those which call for admission.’
”
[25]
It is so that the appellant was a most unsatisfactory witness during
the trial within a trial and seemed to have difficulty
maintaining a
coherent version about the assaults upon him. Notwithstanding, the
constitutional imperatives must lead me to conclude
that the evidence
of the pointing out and statement ought to have been excluded. That
being so, there is no evidence whatsoever
against the appellant. It
follows that the convictions are unsafe and must be set aside.
ORDER
[26]
The order I make is the following:
The
appeal is upheld and the convictions and sentence are set aside.
I
agree
POYO
DLWATI J
HEMRAJ
AJ
Date
of Hearing : 27 May 2016
Date
of Judgment : 28 June 2016
Counsel
for Appellant : SB Mngadi
Instructed
by : The Director of Public Prosecutions
Pietermaritzburg
Counsel
for Respondent : Ms K Essack
Instructed
by : Justice Centre, Durban