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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2016] ZAKZPHC 95
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Zulu v S (CC32/15P) [2016] ZAKZPHC 95 (22 July 2016)
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Certain
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IN THE HIGH
COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO: CC32/15P
In the matter
between:
MONDLI SIPHO
JAMES JETRO ZULU
And
THE STATE
JUDGMENT
POYO
DLWATI J:
[1] The
accused has been arraigned before this court for three charges,
namely one count of murder (1
st
count) and 2 counts of attempted murder (2
nd
and 3
rd
counts).
The State alleges that on or about 29 April 2014 and at or near
Mphise area in the district of Kranskop, the accused
unlawfully and
intentionally killed Nelson Malan Cele, an adult male and also
attempted to kill Ntombifuthi Thusi, an adult female
and Phumzile
Cele, also an adult female.
[2] The
accused pleaded not guilty to all the charges. A statement by the
accused in terms of section 115 of the Criminal Procedure
Act 51 of
1977 (the Act) was admitted into evidence by consent of the parties
as Exhibit “A”. In terms of the
statement the
accused denied being involved in the commission of all the offences.
In particular he denied having been in
the Mphise area in the
district of Kranskop. He could not say where he was on 29 April 2014
as he was only arrested in this matter
on 23 October 2014.
[3] The
state, in order to prove the charges against the accused, called
various witnesses to testify. I will not repeat their
evidence
as it is on record save where it is necessary to do so. One of
the witnesses called was the complainant in count
2, namely
Ntombifuthi Thusi. She was married to the deceased. On
the day in question, the deceased had gone to fetch
her at
Ntunjambili hospital in his silver grey Toyota Tazz motor vehicle.
From the hospital they drove to Kranskop to buy
some groceries.
Thereafter, they left for their home in the company of the deceased’s
brother’s daughter, Phumzile
Cele. On their way home, as
they passed Qabazini store they saw a white vehicle with [...]
registration letters. She
was not sure whether the vehicle was
a Toyota Yaris or a Toyota Corolla. This vehicle was facing the
direction they were
coming from and was stationery when they passed
it.
[4] As they
were proceeding further down the road, they passed the stream that
was separating Mabomvini location to Malovana location.
They
saw that the vehicle they had passed at Qabazini was driving towards
them at a high speed. Ms Thusi suggested to the
deceased that
he must drive towards the side so that this vehicle could pass.
The deceased tried to veer the car to the left
side of the road.
When this car was parallel to them she then heard gunshots.
There was one barrel of a firearm in
the front window of the
passenger’s seat that was pointed at them from this car. At the
back window passenger’s seat
of this car two barrels of
firearms appeared and were pointed at them. As more shots were
being fired, she looked away and
tried to get out of the vehicle.
She also tried to pull the deceased away but he was powerless at that
stage having been
struck by some of the bullets. She sustained
injuries on various parts of her body.
[5]
Thereafter various members of the community, including Mr Mncwango,
arrived at the scene. The police also arrived.
Mr
Mncwango rushed all the injured people to Ntunjambili hospital.
She did not see who the occupants of that vehicle were.
Phumzile
Cele, also a passenger in the deceased’s vehicle testified.
Her evidence corroborated Ms Thusi’s evidence
in all material
respects. She was also injured as a result of the gun shots.
The deceased died on arrival at the hospital.
[6] The state
alleges that it is the accused that killed the deceased and injured
the complainants in counts 2 and 3. To prove
these allegations,
the state relied mainly on the evidence of Mduduzi Mhlonishwa Msomi
(Msomi) who was the only eye witness to
testify. His evidence
was that he was seated under a tree at Qhabazini store during the
afternoon of 29 April 2014.
He noticed a white toyota motor
vehicle driving towards the Kranskop direction. The motor
vehicle came to a halt next to
Qhabazini store and Javas (the
accused) alighted. He (Javas) went to the store through the
gate which was not far from where
he was seated. When Javas was
exiting the store the deceased’s vehicle drove past the store
coming from the direction
of Kranskop. Javas walked back faster to
the car where he had alighted and boarded it in the front passenger
seat. The car
made a U-turn and followed the deceased’s.
[7] Shortly
thereafter he heard gunshots coming from the direction of the river.
He went to a hilly area next to the store
and from there he observed
the white motor vehicle driving parallel to the deceased’s
vehicle. He could still hear
gunshots. He noticed the
deceased’s vehicle veering off the road and the white vehicle
proceeded straight thereafter.
He then left the store with Mzo
Mhlambo and proceeded to the scene where the deceased’s vehicle
was found. When they
arrived at the scene they found the
deceased with his passengers injured. Community members
including Mr Mncwango also arrived
at the scene. The deceased
and the two passengers were rushed to Ntunjambili hospital in Mr
Mncwango’s vehicle.
[8] Msomi
testified that he knew the accused before the date of the incident
but not for more than 12 months. He used to see
him at the taxi
rank and at times would drive taxis travelling between Kwa Maphumulo
and Stanger. He testified that on the
date of the incident the
accused wore a brown woolen hat and a brownish nike jacket with green
patches that matched the hat.
He also testified that on that
day the accused was clean shaven. It was put to him that the
accused practices the Shembe
religion and therefore does not shave.
Msomi was adamant that he was shaved and it was the accused.
[9] It was
also put to him that the last time that the accused drove a taxi was
in 2004 and was a driver in Johannesburg.
Msomi testified that
he used to see him whenever he went to Kwa Maphumulo and would see
him at the taxi rank. He was criticized
for not having
approached the police shortly after the incident as his statement was
only made in August 2014. His response
was that he did not want
to tell the police on the date of the incident as to who he had seen
doing what as community members were
there and it would then be known
as to who said what to the police. It was only later that he
met Mhlongo at Qabazini and
he told him what he had seen.
[10] It was
put to him that he had no reason noticing the accused on the day in
question as that road between Kranskop and Maphumulo
is a busy road.
He responded by saying that what attracted his attention to the
accused was the expensive clothing he was
wearing. He further
testified that the road gets busy in the mornings when vehicles leave
for KwaMaphumulo and also in the
afternoons when they return but at
the time of this incident the road was not busy. Hence when the
accused’s vehicle
arrived, they looked at the vehicle. It
was put to him that he received bits and pieces of information about
what had happened
on the date of the incident and hence he made his
statement so late. He laughed off this and denied that this was
the case.
It was put to him that he was falsely implicating the
accused as the accused was not involved in the commission of the
offences
and his response was that he saw him and was testifying
about what he had seen.
[11] The
other evidence led was that of Greshan Pillay, an IT analysis
specialist employed by MTN. He testified that after
receiving a
s205 request from Mr Mhlongo, who is the investigating officer in
this matter, he drew all the data information about
cellular phone
number 0[...]. On the data handed into court as Exhibit “K”
and “L” he was able to
see that that cellular phone
number was in KwaKomo area between 03:55 PM to 04:25 PM on 29 April
2014. He testified that
the range of a base station varies from
18 to 22 kilometers in a rural area whereas in the urban areas or CBD
it is about 1.5 to
2 kilometers. The cellular phone number was
registered in the name of Zamakahle Zulu in Johannesburg.
[12] Ms
Theresa Botha, who was, up to March 2016, employed by the South
African Police Services as a Chief Administration Clerk
testified
that she had received training on geographical plotting of towers.
Her job entailed managing, coordinating and
disseminating data
information in the working of cellular phones. She testified
that the cellular phone number referred to
in paragraph 11 above
received calls when it was at Doktorskorp tower in Stanger.
From there it moved to Doring Kop.
It then moved to Nyamazane
Hill tower alongside R74. From there it moved to Ndaba Farm
tower. The Nyamazane Hill and
Ndaba Farm towers are in close
proximity with each other. From these towers the cellular phone
moved to Mbongolwane tower.
[13] She
testified that at the time that that cellular phone received a call
at about 04h25PM it was within the triangle of three
towers, namely
Nyamazane, Monkey Hill and Kwakomo. The Mphise area lay in
between Ntunjambili, Mbongolwane and Kwakomo towers.
At the time that
the call was received that handset could have been at Mphise area
hence it could draw signals from those three
towers.
Furthermore, because those areas are mountainous, cellular phone
signal could be drawn from any visible tower at
the time that a call
is made or received and that might not necessarily be the closest
tower to the person.
[14] The
state thereafter called the witness Nathi Agrippa Dlamini. He is a
police officer stationed at KwaMaphumulo police station
with 8 years’
experience. It became apparent when this witness was testifying that
what he was saying in court was inconsistent
with a statement he had
previously made to the police. The gist of his evidence was whether
he had called the accused on the number
083 535 4741 on the date of
the incident, 29 April 2014. His testimony was that he did not give
Mhlongo the accused’s number
but that number was supplied by
Mhlongo to him. All he said to Mhlongo was that he knew the accused
and it appeared that he might
have called the accused on the date in
question. Mr. Van Heerden then applied to declare the witness hostile
as the witness had
said that he did not make the statement freely and
voluntarily as he was threatened by Mr. Mhlongo in the presence of
his Supervisor,
Colonel Mbhele. He further testified Mhlongo told him
that he was warning him that he could be put behind bars if he was in
contact
with criminals.
[15] Mr
Barnard objected to the application on the basis that a witness could
be only declared hostile after the state had proved
that the witness
had made the statement and that his evidence in court was
inconsistent with the statement. He argued that at that
stage the
state had not proved that the witness had made the statement. The
court then explained to the witness the implications
of the witness
being declared hostile and the fact that if it was found at the end
of the inquiry that he had in fact made the
statement and had made it
freely and voluntarily he could be charged with perjury. The court
then advised the witness that he was
entitled to be legally
represented during the enquiry either by his own private counsel or
Legal Aid counsel if he could not afford
a private one. The witness
chose to instruct his own counsel. At that stage, because the witness
had said he did not make the statement
freely and voluntarily, I
ruled that a trial within a trial be held to determine whether the
statement had in fact been made by
the witness and if so whether it
was made freely and voluntarily.
[16] I pause
here to mention that the witness was legally represented and his
representative was allowed to cross examine the witnesses
and make
arguments on his behalf as to the admissibility of the statement. The
State called Mr. Mhlongo, Constable Vusi Ziqubu
who had accompanied
Mhlongo to KwaMaphumulo police station to consult with the witness;
and retired Colonel Victor Mbhele who was
the head of the detectives
at KwaMaphumulo and would act as a station commander if and when
Mchunu, the station commander was not
present. He was present when
the witness was interviewed by Mhlongo.
[17] Their
evidence established that the witness Dlamini was known to all of
them as he is also a police officer at the KwaMaphumulo
police
station. On checking the accused’s cellphone records which he
(Mhlongo) had obtained in terms of Section 205 of the
Act he found
that on the date of the incident the accused’s number had been
called by the number 082 406 3100. He then phoned
that number and
established that it belonged to Dlamini. He then made an appointment
with Dlamini to see him on the following day
being 3 November 2014.
On arrival at KwaMaphumulo police station on 3 November 2014 they
(Mhlongo and Ziqubu) went into Colonel
Mbhele’s office and
advised him that they were there to see Dlamini about a case they
were investigating. Mhlongo testified
that they chose to see Dlamini
in the presence of his supervisor so that Dlamini would not, at some
stage accuse them of having
ill-treated him. He further testified
that it was common practice within the police services that if police
officers of the same
rank are investigating each other, then a senior
to them should be present when they are meeting.
[18] Mhlongo
testified that upon enquiring from Dlamini about his relationship
with the accused, Dlamini told him that the accused
was his friend.
He asked him if he had phoned the accused on the date of the incident
and he said it was possible. After Dlamini
said that, Mhlongo then
asked him if he would be prepared to make a statement to that effect.
Dlamini went to another office and
came back with a paper, sat down
in the office and wrote his statement as the 3 of them were having a
conversation. After he finished
he told him that he had finished and
Mhlongo enquired if he had read what he had written and Dlamini
confirmed and thereafter took
the oath and signed. Mhlongo thereafter
certified the statement meaning he commissioned it. He denied having
threatened Dlamini
and explained that he would not have threatened
him in the presence of his supervisor. Furthermore no charge was laid
against Mhlongo
for having threatened Dlamini nor were any reports or
complaints made about such threats. Mhlongo denied that he had
furnished
Dlamini with the accused’s number and testified that
Dlamini had the accused’s number. He denied that the statement
was not made freely and voluntarily. He confirmed that the statement
was made by Dlamini.
[19] It was
put to Mhlongo that the affidavit made by the witness did not satisfy
the requirements of the Justices of the Oath and
Peace Act in that it
did not have time, date and place where the affidavit was made. His
response was that in his view, even though
the date, time and place
are not there the affidavit was signed by the witness before him and
the witness had confirmed its correctness
and he certified it
accordingly. Mhlongo also denied that what was in the statement was
what he had told the witness. Constable
Vusi Ziqubu who was with Mr.
Mhlongo when he met with the witness also testified. His evidence
corroborated that of Mhlongo in
all material respects. The only
aspect in Ziqubu’s evidence was that according to him Mhlongo
had asked the witness if he
(the witness) had called the accused on
the day when Mr. Cele was killed and the witness told Mhlongo that he
could not recall.
[20] Retired
Colonel Victor Mbhele also testified. His evidence corroborated
Mhlongo and Ziqubu’s evidence in all material
respects. He
however did not see whether the witness had taken an oath before
Mhlongo or whether Mhlongo had certified the affidavit
as he was not
paying attention. That was in summary the state’s case in the
trial within a trial. The witness, Nathi Dlamini
testified. He
confirmed that he was a member of the South African Police Service
stationed at KwaMaphumulo. He also testified that
he knew Mr. Mhlongo
as a police officer from Kranskop. He also testified that they used
to do joint operations between KwaMaphumulo
and Kranskop police
officers and him and Mhlongo would be involved something which
Mhlongo denied. He denied that he had received
a call from Mhlongo
prior to the date of their meeting.
[21]
According to him, Mhlongo arrived at the KwaMaphumulo police station
that morning. He summoned to Colonel Mbhele’s office
where he
met Mhlongo and Ziqubu. When he entered the office it appeared that
Mhlongo and Mbhele were discussing something. As he
entered, Mhlongo
said there is the man who is contacting criminals and I’m going
to arrest him. Mhlongo thereafter turned
to him and said ‘Dlamini
why are you contacting criminals and I’m going to arrest you.’
He testified that he
was confused by this. Mhlongo thereafter asked
him if he knew the accused and his response was that he knew the
accused as he is
from the KwaMaphumulo area. Mhlongo told him that on
29 April 2014 (a date which the witness said he did not remember) an
incident
had happened and a person was killed. Mhlongo told him that
he had records that he (Dlamini) had contacted the accused on that
day. Mhlongo asked him where he was on that day and his response was
that he was at home after having looked at the time which Mhlongo
told him the incident had happened.
[22] He
denied that Mhlongo showed him documents or what he had his docket
with him. Mhlongo thereafter told him to make a statement
explaining
what had happened and what he knew. Mhlongo told him that he was
warning him to stop talking to criminals and at that
time he was not
going to arrest him and merely wanted a statement. He testified that
he went to a nearby office to fetch paper
in order to write the
statement. On his return from that office Mhlongo asked him where his
cellular phone was and he told him
that he had it. Mhlongo asked him
if he had the accused’s number and he told him he did not have
it. Mhlongo told him to
write the statement which he did.
[23] He
testified that he wrote the first paragraph of the statement on his
own. When he was writing the second paragraph Mhlongo
assisted him
with the time and date of the incident. He wrote the statement and
left a space for the accused’s number as
he did not have it.
Mhlongo went out and said he was going to get the accused’s
number in prison where he had signed. Mhlongo
came back with a piece
of paper that had a number and he took that paper and wrote the
number. He completed the statement and Mhlongo
took it. He testified
that he was shocked at this incident and thought that he would be
arrested. He however never reported the
incident to anyone as he knew
that one cannot lay a charge against someone by them merely saying
they were going to arrest you.
He only saw the cellphone records in
Pietermaritzburg when he was consulting with the prosecutor, Mr. Van
Heerden and Mhlongo in
preparation for the trial. And that is where
they all realized that his statement was incorrect in that it said
the accused had
called the witness whereas it was the witness who had
called the accused.
[24] He
testified that he had asked Mhlongo about the cellphone records when
they met at KwaMaphumulo and Mhlongo told him that
he did not have
them with him. He therefore wrote what was said by Mhlongo as he
trusted him. He testified that he never took an
oath and none was
administered to him. Under cross examination it was put to him that
he was not being truthful to the court when
he said the statement was
not commissioned whereas in the earlier proceedings he had testified
that the statement had been commissioned.
His response was that he
had merely confirmed that the statement had been commissioned because
when it was shown to him it had
been commissioned but he did not mean
that it had been done in his presence. He confirmed that he had told
Mhlongo that he knew
the accused. He conceded that whilst earlier he
had testified that he went and wrote the statement in another office,
he had been
mistaken about this aspect as he had in fact written the
statement where Mhlongo, Ziqubu and Colonel Mbhele were.
[25] Under
cross examination he testified that he felt threatened by Mhlongo’s
threats. He was asked why he never said so
in his evidence in chief
and his response was that being shocked and being threatened is one
and the same thing in isiZulu. He
was asked why he never reported the
threats by Mhlongo to his superiors and his answer was that it
happened in Colonel Mbhele’s
presence so he could not report
elsewhere. He could not agree or dispute that the statement was made
on 3 November 2014. He confirmed
that it was made at KwaMaphumulo
police station. He also confirmed that he recorded so help me God on
the document as that was
the oath.
[26] Under
re- examination by his counsel, he testified that he wrote his 082
number on the statement because Mhlongo had told him
that that was
the number he used when communicating with the accused. This aspect
of the evidence was never put to Mhlongo when
he testified nor did he
testify about it in his evidence in chief. On being asked by the
court whether as a police officer he would
write the words ‘so
help me God’ even if he did not take the oath his response was
that he usually writes statements
for members of the public and that
was the mistake he made when writing his own statement. That was the
witness’s case. After
argument I ruled that the statement was
admissible and that it was made freely and voluntarily by the
witness.
[27] There
were two contradicting versions by the state and by the witness. I
weighed the probabilities and the improbabilities
of both versions. I
also took into account the credibility of the witnesses. In my view
it is highly improbable for Mhlongo to
have threatened the witness
even before interviewing him and in the open next to the charge
office at the station. If he did that
he risked being heard by
everyone making those threats. There would have therefore been more
witnesses who could have heard Mhlongo
making those threats.
Furthermore it had earlier been put to the witnesses that the threats
were made to the witness closer to
the charge office whereas when the
witness testified he said the threats were made in Colonel Mbhele’s
office. I also find
it highly improbable that Mhlongo would threaten
the witness in front of Colonel Mbhele who was acting as a station
commander at
that time. There was no evidence that Mhlongo and Mbhele
were friends and therefore Mhlongo would have done as he pleased
before
Mbhele.
[28]
Furthermore if Mhlongo had indeed threatened the witness in front of
Colonel Mbhele and Colonel Mbhele did nothing about it
and the
witness felt aggrieved he (the witness) could have still reported the
matter to the station commander, Mr. Mchunu. He could
also have
reported the matter to the area cluster head or the Provincial
Commissioner of Police. I am therefore satisfied that
the witness was
not threatened in any way before making the statement. He never
mentioned during his evidence in chief that he
was threatened by
Mhlongo. All he said was that he was shocked by what was happening.
His counsel tried very hard to get out of
him to say that he was
threatened but he did not succeed. Only under cross examination did
he say that he was threatened. When
asked why he did not say this
earlier he said the isiZulu word for threatened is the same as being
shocked. This was indeed blue
lies. In isiZulu being shocked is
ukuthuka and being threatened is ukusaba. There is a huge difference.
This was another lie by
the witness.
[29] With
regards to whether the statement was made by the witness, I am also
of the view that it was made by him. His initial evidence
was that he
had left the office where Mhlongo,Ziqubu and Colonel Mbhele were and
wrote out the statement in another office. Later
as the three
witnesses testified and he saw that it was evident that what he had
said was contrary to what the witnesses had said,
he confirmed their
version and said he wrote out the statement in that office. It was
initially put to the witnesses that the witness
only wrote the first
paragraph and thereafter Mhlongo told him what to write. However it
emerged during cross examination that
a lot of what is contained in
the entire statement emanated from him. On his own version, in any
event he testified that he wrote
out the whole statement and left a
space for the accused’s cellular phone number to be inserted
when Mhlongo had returned
with it. I find these contradictions in his
statement to be an indication of how untruthful he was when he
testified.
[30]
Furthermore only by chance and under cross examination did he reveal
that Mhlongo had told him to put his 082 number in the
statement as
this was the number used in contacting the accused. This was never
put to any of the witnesses and I find this to
be a fabrication of
his evidence on his part. It was an after- thought right at the end
of testimony. I have no reason not be believe
Col. Mbhele when he
said at no stage did Mhlongo leave his office when the statement was
being written by the witness. He also
testified that Mhlongo had his
docket and documents when he came to his station. Col Mbhele’s
evidence was quite impressive.
He was honest and told this court when
he did not know certain things or did not remember them. His demeanor
was good and I had
no reason to disbelieve his evidence. He testified
that he had a good relationship with Dlamini before his retirement
and he could
count on Dlamini as he was a real man. He therefore had
nothing to gain by coming to court to lie. Furthermore his evidence
corroborated
Mhlongo and Ziqubu’s evidence. On the other hand,
the witness was quite unimpressive. He tried to change all the
evidence
that he had given before the trial within a trial. I have
already alluded to various things that he testified about which were
not put to the witnesses and contradictions in his evidence. I am
therefor satisfied that the statement was made by him.
[31] As to
whether the statement was duly commissioned in front of him, this is
another after thought and a technicality to get
out of the hurdle of
owning up to the statement. He had earlier confirmed that the
statement had been commissioned and I accept
that. The further
evidence led cured any deficiencies that could exist in the
statement. For instance there is no dispute that
the statement was
made at KwaMaphumulo on 3 November 2014. The only thing missing is
the time and that is not fatal to the statement
so as to make it
invalid. The statement therefore is admissible as it was made by the
witness, freely and voluntarily. It was handed
in as Exhibit N. The
evidence in the trial within a trial was incorporated to the main
trial by consent of all the parties.
[32] The
state thereafter made an application to declare the witness hostile
as his testimony was inconsistent with the statement.
Even though I
granted the application, I am of the view, and in hindsight that this
part was no longer necessary as it was superfluous.
The court had
already made a ruling that the statement was made freely and
voluntarily by the witness after extensive cross examination
of the
witness. Most of what he testified about in any event was already
covered in the trial within a trial. The only new aspect
that came
out of this evidence was that the witness knew the accused and they
used to phone each other from time to time. He denied
that they were
friends but confirmed that he used to see him at the KwaMaphumulo
taxi rank but he did not know whether he owned
a taxi or not.
[33] The
state also intended to rely on a statement purportedly made by the
accused shortly after his arrest. In this regard
both counsel
presented argument as to whether the statement was a confession or an
admission. Both the State and the defence
agreed that the court
should first deal with the issue of whether the statement was an
admission or a confession and thereafter
the admissibility of same
could be determined. Mr Van Heerden, on behalf of the state
argued that the statement was an admission
in that it was made before
the investigating officer, and not in front of a magistrate as would
be the case with a confession and
that the provisions of s217(1)(a)
are applicable.
[34] He
further submitted that the statement was an admission as the accused
had not mentioned anything about murdering the deceased
in that
statement. He argued that once there is a slight opportunity of
a defence then the statement cannot be a confession.
He argued
that it was not clear in the statement as to who had shot the
deceased. He argued that for a statement to be a
confession it
must amount to a plea of guilty and in this case, even though it was
highly incriminating it was not or did not amount
to a confession or
a plea of guilty. He also made reference to various authorities
in this regard.
[35] On the
other hand, Mr Barnard, on behalf of the accused argued that the
statement amounts to a confession. He argued
that the statement
must be assessed objectively and the surrounding circumstances must
be considered. In this regard he relied
on
State
v Yende
1987(3) SA 367 (A) and argued that
this case brought to an end the impractical and artificial approach
that had been adopted in
S v Bekker
1929 AD 167.
He argued that in this case, at the time that the
accused made the statement, he knew that he was suspected of killing
the
deceased and therefore if the statement is considered as a whole
with the surrounding circumstances then the statement amounts to
a
confession. After hearing argument from both counsel and having
examined the statement closely, I ruled that the statement
was an
admission.
[36] In
examining the statement I was satisfied that the statement was not an
admission of all the elements of the offence, nor
was it a full
acknowledgment of guilt, see
State v Zuma &
Others
1995(4) SACR 568 CC at page 585 para
27. The court confirmed this principle as was laid down in
R
v Becker
1929 AD 167.
Mr Barnard urged
this court not to consider
R v Becker supra
as it was no longer the law on the issue. However
R
v Becker supra
was quoted with approval by
the Constitutional Court in
S v Zuma supra
.
If one for instance considers paragraph 5 of the statement which
reads; “
After shooting or killing of Malani Cele we
proceeded with a gravel road to Emangongo to Dorinkop where we hide
ourselves”.
In this regard I cannot say with
certainty as to who shot Malani Cele and for what reason. I also
cannot say why they went and hid
themselves. I have had regard
to that which is necessarily implied from the statement and I have
doubt if it amounts to a
clear admission of guilt, hence I ruled that
the statement is an admission.
[37] After
having ruled that the statement was an admission, Mr van Heerden
sought to hand in the statement as part of the evidence.
However Mr Barnard objected to the statement being handed in and
submitted that the statement was not made freely and voluntarily
by
the accused and was therefore inadmissible. He submitted that
the accused alleged that prior to making the statement he
had been
assaulted by the investigating officer, Mr Mhlongo, in the presence
of other police officers. He further contended
that no rights
were explained to him prior to the making of the statement. The
state therefore applied for a trial-within-a-trial
to be held in
order to prove the admissibility of the statement and that it had
been made freely and voluntarily by the accused.
[38] I will
not go into detail with this evidence as it is on record, suffice to
say that Mr Mhlongo testified and denied having
assaulted the
accused. It was put to him that the accused had reported this
assault to a police officer who was on duty in
the early hours of 24
October 2014 but this, Mhlongo disputed. It was further put to
him that this assault was also reported
to a magistrate at
KwaMaphumulo Magistrate’s court on the accused’s first
appearance there and as a result the magistrate
ordered that the
accused be taken to a doctor. Subsequently the accused was
taken to Ntunjambili hospital where he was seen
by Dr Maharaj.
However, Dr Maharaj, for some flimsy reason, was not able to attend
court and Dr Nomkhosi Phakati (Dr Phakati)
testified in order to
interpret the medical data on the accused’s J88.
[39] She
testified that the doctor made an assessment of an assault according
to the hospital records admitted into evidence as
Exhibit “R”.
She testified that an assessment is a combination of history as told
by the patient and the doctor’s
own assessment. In other
words it is the doctor’s finding after having received history
from the patient. Under
‘A’ which is assessment,
the doctor wrote assault and further wrote rib pain and bruise;
C-spine and tenderness.
She testified that the doctor would
have elicited tenderness if she applied pressure on the C-spine.
However the doctor did
not indicate which part of the rib was painful
and did not indicate where the bruise was. The bruise, however,
would be what
the doctor would have seen.
[40] The next
step after assessment is that the doctor ordered x-rays and after she
obtained the results he recorded that there
were no abnormalities
detected. He further planned to give treatment, namely
Amoxyl
which is an antibiotic, then
Panado
for pain and the patient was injected with
Penicillin,
which is also an antibiotic and
Voltaren
an anti-inflammatory for pain. On the next page which was an
x-ray request form, under history and clinical finding the doctor
wrote assault but it was evident from the records that a “NO”
had been inserted before assault. This clearly
was a forgery
perpetrated so as to create an impression that a finding of no
assault had been made by the doctor and yet according
to Dr
Phakatini, Dr Maharaj had not made a diagnosis. I do not know
who would have inserted the words “NO” before
assault but
that must be frowned against as it is not in the interest of justice
to mislead the court.
[41] It had
been put to Mhlongo that upon the accused’s arrest no rights
were explained to him. Further, he was made
to sit on a chair
and a tube was pulled through his face from behind. Later that
evening he was taken to a place in Stanger
that was near a river.
He was slapped and pushed into this river. He was taken out of
the river and pushed to the ground
whereafter Mhlongo stood over him
and pulled a tube over his face. From there he was taken to a
soccer field in Stanger and
was forced to lie on the ground.
Pepper spray was sprayed on the tube and the tube was put on him.
Although Mhlongo
denied that all this had been done on the accused,
Dr Phakati on the other hand confirmed that the bruise on the accused
could
be consistent with the fact that the accused had been pushed
into a river. Furthermore, the tenderness on the C-spine would
be consistent with the fact that a tube was pulled over the accused’s
face when Mhlongo was standing behind him. The
tenderness would
be caused by the hyper extension of the neck and its sudden movement.
[42]
Constable Sinothi Nxele denied that the accused had reported any
assaults to him nor had he complained of pains. That
in a
nutshell was the State case in the trial within a trial. The
accused elected not to testify. I ruled that the
state had not
proved its case beyond reasonable doubt that the statement was made
freely and voluntarily by the accused.
The statement was
therefore ruled as inadmissible. I was satisfied that
prima
facie
, there was an allegation of assault.
At the first available neutral moment, in the KwaMaphumulo
Magistrate’s Court,
the accused reported the assault to the
magistrate on 27 October 2014. Thereafter the accused was taken
to a doctor at Ntunjambili
hospital who prescribed substantive
medication for him. The doctor’s own assessment was
assault even though there was
no clear diagnosis. However, the
medication given is in line with the pains that the accused says he
suffered. Furthermore,
some of the injuries he sustained are
consistent with the type of assault that the accused says was
perpetrated on him. I was satisfied
that the accused could not have
made all this up unless it had indeed happened. Even though the
accused did not testify, on the
state’s version there was an
assault on the accused as assessed by Dr Maharaj, hence I ruled the
statement inadmissible.
In any event the onus was on the state to
prove beyond reasonable doubt that the accused had not been assaulted
and the state failed
to discharge the onus.
[43] Mr. Van
Heerden sought to address the court and applied for the statement of
Dlamini to be handed in in terms of
Section 3(1)
of the
Law of
Evidence Amendment Act 45 of 1988
. For this he relied on
S
v Mathonsi
2012(1) SACR 335 KZP and
S
v Rathambu
2012(2) SACR 219 SACR. The facts
briefly in
Mathonsi
supra
were that a
witness had made a statement to the police. He was called to testify
on behalf of the state. During his testimony it
became apparent that
he was deviating from the statement he had made to the police. The
prosecution asked for the statement to
be proved and the witness to
be declared hostile. The court then declared the witness hostile and
he was then subjected to a full
and effective cross examination on
the statement by both the prosecution and the defense.
[44] When
evaluating and considering the totality of the evidence before him,
the learned magistrate took the statement made by
the witness who had
been declared hostile into account. The issue that arose on appeal
was whether the previous inconsistent statement
by a hostile witness
has any probative value worth consideration during the evaluation and
assessment of all the evidence adduced
before the court
a
quo,
and, if the answer is in the
affirmative, what weight is to be attached thereupon. I pause here to
mention that in my view the facts
in Mathonsi were distinguishable
from this case.
[45] I say so
for the following reasons: When the witness Dlamini testified it
became apparent that he was deviating from the statement
he had made
to the police. At that stage Mr. Van Heerden applied for the witness
to be declared hostile but Mr. Barnard, objected
on the basis that
the witness had testified that the statement was not made freely and
voluntarily. At that stage after having
considered the implication of
a finding after the determination of whether the statement was made
freely and voluntarily, I found
it prudent that I advise the witness
that if at the end of the enquiry I found it that he had made the
statement and had done it
freely and voluntarily, he might be charged
for perjury. I was and still am of the view that it was best to
advise him at the early
stages of his testimony.
[46] I then
advised him of his rights to legal representation before we dealt
with the inquiry. He chose to appoint a legal representative
of his
choice. When the matter proceeded it was agreed between the parties
that the issue proceed by a way of a trial within a
trial. The
accused’s counsel was also participating throughout.
Furthermore the witness was also alleging that some of the
information in the statement was not from him but was given by
Mhlongo.
[47] At the
commencement of the trial within a trial Mr. Van Heerden argued that
there was no basis in law for the witness’s
counsel to cross
examine the witnesses. Mr. Jorgensen who appeared for the witness
then argued that for a trial within a trial
to be effective, he must
be allowed to cross examine the witnesses. I found that it was in the
interest of justice that the legal
representative of the witness be
allowed to participate fully in the proceedings. His duty was to
safeguard the interests of the
witness and could only do so if he
cross examined the witnesses. This would enable the parties to fully
ventilate the issues.
[48] The
issue of whether the statement was made by the witness freely and
voluntarily was ventilated fully and the witness gave
evidence and
was cross examined extensively. The issue of hearsay therefore does
not and did not arise. The statement was admitted
into evidence and
all the evidence in the trial within a trial was incorporated into
the main trial hence I alluded to the fact
that a further application
to declare the witness hostile was superfluous in the circumstances.
In any event much of what was testified
about after the witness was
declared hostile was a repetition of what was dealt with in the trial
within a trial. Hence in my view
this case is distinguishable from
Mathonsi
as well as
Rathumba
for that
matter. In
Mathonsi
the court
aquo
never
dealt with the evidence as extensively as it happened in this case.
The truth and untruthfulness of the statement was established.
I
therefore do not believe that it ought to be admitted in terms of the
hearsay evidence rule. The requirements set forth in Mathonsi
for the
admission of the statement in terms of the hearsay evidence rule do
not find application in this case. They in a way have
been compiled
with during the trial within a trial. It therefore could not be said
it was hearsay evidence as the witness had testified
fully about the
statement. That then was the state’s case.
[49] Mr.
Barnard argued that because the court had ruled inadmissible the
statement made by the accused to Mhlongo, I should reconsider
the
ruling made in the Dlamini statement as Mhlongo was the main
protagonist in the Dlamini statement. I however rejected his argument
as the circumstances where I had admitted Dlamini’s statement
and rejected the accused’s statement were different.
My reasons
for admitting the one and rejecting the other have been fully
explained above. I therefore remained unconvinced that
I should
reconsider my ruling. Mr. Barnard then closed the defence case. The
accused did not testify and confirmed that after discussing
with his
counsel, he elected not to testify.
[50] I now
look at the evidence. The evidence implicating the accused is that of
Msomi, Dlamini’s statement and the cellphone
evidence. Mr Van
Heerden argued that the state had proved its case beyond a reasonable
doubt and the accused must be convicted.
He argued that there was
direct evidence linking the accused but there was no explanation from
the accused nor was there rebuttal
of the state’s evidence by
the accused. He argued that there was one version before the court
and urged the court to accept
it. Mr Barnard argued for the accused
to be acquitted as the state, in his view had failed to prove the
accused’s guilt beyond
a reasonable doubt. He criticised the
evidence of Msomi as being unreliable as he had contradicted himself
in certain aspects.
He argued that the fact that Msomi took so long
to make a statement must be one of the reasons, why his evidence is
not reliable.
He argued that there was no onus on the accused to
prove his innocence. Even if he did not testify the state still had
to prove
its case beyond a reasonable doubt.
[51] In terms
of S 208 of the Act 51 of 1977 an accused may be convicted of any
offence on the single evidence of any competent
witness. It is
however trite now that such evidence must be clear and satisfactory
in all material respects. The evidence therefore
must be treated with
caution. As held by Macdonald AJP in
R v J
1966(1) SA 88(SRA) the cautionary rules are no more than guides,
albeit very valuable guides, which assist the court in deciding
whether the Crown has discharged the onus resting upon it. He added,
the exercise of caution should not be allowed to displace
the
exercise of common sense. This view has been quoted with approval in
various cases in our courts including the Supreme Court
of appeal.
[52] The
evidence of Msomi must be treated with caution as it is one of a
single witness and identification was at issue. One of
the safeguards
of caution is corroboration. I however will come back to this later
on in the judgment. The criticisms leveled at
Msoni’s evidence
were the following:
(a)
He made his statement 3 or 4 months after the incident;
(b)
He could not clearly tell this court how he knew the accused;
(c)
He contradicted himself about the colour of the tracksuit alleged to
have been worn by the accused
on the day of the incident;
(d)
He had no reason in minding all the cars passing by at Qabazini store
and people walking in and out
of the store.
[53] Msomi
explained in his evidence that he could not tell the police at the
scene what he had seen with regard to the accused
as he feared that
the news might spread and he feared for his life. He also explained
that he was scared to contact the police
but when he found the police
on a certain day at the store enquiring about the matter he then
volunteered the information and told
them that the accused was
involved. On how he knew the accused, he explained that he used to
see him in the KwaMaphumulo taxi rank
whenever he went to town. He
knew him as Javas as people with him called him that. He did not
remember the date when he first saw
him. He however knew him at least
4 months prior to the incident. At times he saw him driving taxis
travelling between him Maphumulo
and Stanger.
[54] Although
it was disputed that the accused drove taxis it was never disputed
that he used to be present at the taxi rank. This
was also confirmed
by Dlamini when he testified. Furthermore there was no evidence
rebutting what the witness had said. It is natural
that people would
know a person without that person knowing them. I therefore find no
reason to disbelieve Msomi in this regard.
[55] On the
colour of the tracksuit worn by the accused on the day in question,
he explained that the difference in what was in
the statement and
what he testified about was because Mhlongo recorded what he did not
tell him and he stood by his testimony.
On the issue of
identification Msomi testified that the incident happened during
broad daylight. It was hot and he had just come
back from swimming.
He was seated under a tree chatting to Mzo. He testified that the
road was not busy at that time. He testified
that the road does get
busy in the mornings and afternoons, I suppose during the peak hours.
He observed the accused alighting
from the white vehicle to the
tuckshop and back from the tuckshop. He provided an explanation as to
why he had an interest on the
accused and that is he wore expensive
clothing. This must be taken in the context of someone, a young man,
staying in the rural
areas and amused by the type of clothing that
the accused wore. In my view he satisfied all of the requirements of
identification
as laid down in S v Mthethwa.
[56] His
evidence is corroborated by Dlamini’s statement that he phoned
the accused that afternoon on his number 083 5354
741 from 082 4061
300. It was confirmed by Mrs Botha that that number would have been
around the Mphise area when the call was
received. In any event, in
my view, Msomi was an honest witness. The court was impressed by his
evidence. His demeanour was good
in the witness box and never
hesitated to answer all the questions put to him. He had
opportunities to tailor his evidence to close
any criticisms leveled
against him by Mr Barnard but he did not do so. He gave a clear,
coherent version of events as they unfolded
on the date of the
incident. I am satisfied that he told the truth about what happened
on that day. His evidence therefore was
clear and satisfactory in all
material respects.
[57] The
accused did not testify and that is his constitutional right not to
do so. However as held in
S v Boesak
[2000] ZACC 25
;
2001
(1) SACR 1
CC at para 25, the fact that an accused person is under no
obligation to testify does not mean that there are no consequences
attaching
to his decision to remain silent at 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. I am satisfied
that having taken the evidence in totality, the accused was one
of
the persons that were in the white Toyota motor vehicle as testified
to by Msomi. He was seated on the front passenger seat
of that
vehicle and that is where a barrel of a firearm appeared and fired
shots at the deceased and the complainants in counts
2 and 3. I am
satisfied that the state has proved beyond a reasonable doubt the
guilt of the accused and I find him guilty as charged.
APPEARENCES
Date of
Judgment
: 22
July 2016
Counsel for
State
: Adv Van Heereden
Instructed by
: The Director of Public Prosecutions PMB
Counsel for
Accused
: Adv L Barnard
Instructed by
: Rakesh Maharaj & Co Stanger