About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2016
>>
[2016] ZAECBHC 6
|
|
Jongilanga v S (CC14/13) [2016] ZAECBHC 6; 2016 (2) SACR 404 (ECB) (31 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE LOCAL DIVISION, BHISHO)
Case no: CC 14/13
In the matter between:
MAYBAAS
JOLINGANA
Appellant
and
THE STATE
Respondent
JUDGMENT
MBENENGE J:
Introduction
[1]
The appellant appeared before the court
a
quo
[1]
on charges of murder, unlawful possession of a firearm and unlawful
possession of ammunition. He pleaded not guilty to all
the
charges, but was found guilty of murder, and not guilty on the
charges of unlawful possession of a firearm and unlawful possession
of ammunition. He was sentenced to undergo 15 years’
imprisonment.
[2]
The instant appeal, brought with the leave of the court
a
quo
,
[2]
is against the appellant’s conviction. The basis for the
appeal is, in the main, that the court
a
quo
misdirected
itself in ruling that the appellant’s counsel could not
cross-examine a state witness, Ms Adelaide Mpenyana (Mpenyana),
on a
written statement she had made to the police. The
cross-examination was refused because Mpenyana had not “
owned
”
the statement. The ruling made is appealed against, in the
alternative, because the court
a
quo
had not given
the appellant’s counsel an opportunity to address the court on
the statement Adelaide had made. The appellant
contends that,
in the result, he did not have a fair trial.
[3]
The issue before this Court is whether the ruling made by the court
a
quo
amounted to a
violation of the appellant’s right to a fair trial and, in the
event of it being found that there was such
violation, whether the
violation is justifiable in terms of section 36 of the
Constitution.
[3]
The
section 36 argument was not pertinently raised at the hearing of the
appeal.
[4]
However, it is
available to a court
mero
motu
to delve into
a limitation analysis where it is found that a right, as contained in
the Bill of Rights, has been violated.
[5]
The facts
[4] It had been alleged
before the court
a quo
that on or about 12 April 2013 and at
or near [1... S.] Township in the district of Keiskammahoek the
appellant shot and killed
Tobela Herbetina Mpenyana, the deceased.
It is common cause that the appellant and the deceased had been in a
love relationship
at the time of the shooting. On the fateful
morning the appellant arrived at the residence of the deceased.
While the
deceased and the appellant were outside fire shots went off
and the deceased was shot. She sustained three gunshot wounds;
a fractured skull; lacerated brain, lungs, and spinal cord; intra
cranial bleeding; blood in the chest cavities and pale internal
organs. The deceased died at the scene.
[5] The trial court was
faced with two main questions namely, the identity of the shooter and
whether
the murder had been premeditated. The prosecution
relied on the testimony of the only eye witness, Mpenyana; she is the
mother
of the deceased. The court
a quo
also relied on
the testimony of Mpenyana in convicting the appellant for murder as
she was the only state witness who gave direct
testimony against the
appellant.
The cross-examination
[6] As this appeal hinges
on the cross-examination of Mpenyana, it becomes necessary to extract
the
relevant questions posed and answers proffered comprising the
cross-examination of Mpenyana from the transcript.
[7] After testifying that
she knew and had seen the accused at her place of residence on the
morning
in question, Mpenyana testified that she had been outside,
standing on the veranda, when she saw the appellant shoot the
deceased
three times. The record further reveals the following:
“
And when the Accused arrived
with what did he arrive at your place? --- He left his car
outside the yard
And was he … wearing a civil clothes or uniform?
--- He was in brown uniform.
Okay so you said they followed each other to the side of
the house.
And then what happened? --- A little moment after
they got out I heard the deceased voice saying “
I have
forgiven you, I have forgiven you”
I could see when you were saying this you were in a
shouting voice is that what the deceased said? --- That is the
way she
was shouting.
Proceed. ---
I jumped outside I stood on the
stoep
that is on one of the stairs and I could see them on that
other side, the Accused back was facing the gate and the deceased was
facing the Accused holding the firearm and he fired.
Who was holding the firearm? --- The Accused was
holding the firearm.
And you said he fired? --- Yes.
Where did he fire? --- He was firing at Tobela.
…
MS TOKOTA
Were the shots following each other or was there a
pause in between the shots? --- It was a very short time I
cannot remember
well but the time was very short.
Okay you said you were standing on the stoep and the
Accused was standing on top of the deceased as she was lying there in
a pool
of blood? --- Yes
Then what happened? --- The
Accused was looking at me holding the firearm then he left and went
out of the gate his firearm.”
[6]
(Sic)
[8] The appellant’s
then legal representative proceeded to cross-examine Mpenyana.
The
relevant portion of the cross-examination relates to the
inconsistency between the statement Mpenyana made to the police and
her
testimony during examination-in-chief. Mpenyana testified
that she had been outside and saw the appellant shoot the deceased
three times.
[9] Whilst being
cross-examined, Mpenyana testified:
“
Now you heard your daughter
screaming saying: “I have forgiven you I have forgiven you”?
--- I heard her.
Now you went out to investigate or to see what was
happening? --- Yes I went out to investigate.
And you saw the Accused with his back looking at your
daughter?
COURT:
She saw them facing each other.
MR SIDZUMO:
Yes
COURT:
Yes. --- Yes.
…
Now at what stage madam did a firearm when this firearm
a round went off?
COURT:
At what time was the first shot fired? ---
Just immediately after I got out of the doorway Tobela just looked at
me and then
the fire was shot.
MR SIDZUMO:
Now the second shot when did it follow? ---
The shots were not far from each but I cannot remember because that
was a difficult
time for me.
…
Now madam is it correct that after this incident you had
made a statement to the Police? --- I made the statement the
following
day.
And the events were still fresh in your mind? ---
Yes
…
I want you to look at this statement here especially
your signature on the second page. --- Yes the signature is
mine.
Madam I am going to read one paragraph of your statement
which reads as follows; “On Friday 12 April at about eight I
was
at my daughters house Tobela who is the deceased at 1[...],
S[...] Township, I was with the deceased Tobela after preparing for
the children to go to school I saw a man wearing a Correctional
Service uniform which was not the first time to see him and entered
the house and then asked for Tobela who was with me at the time.
Tobela go out with this familiar guy and after a shot [inaudible]
I
hear Tobela (deceased) saying that I forgive you after that I hear a
gunshot outside the house three times”. Now
your
testimony today is that when this gunshot went off you were outside
already.” (Sic)
[10] This form of questioning
attracted an objection from the prosecution’s camp on the basis
that the “
witness never owned
” the statement and
had thus not laid a basis for such cross-examination. It is
apposite to quote directly the interaction
between the court
a quo
and Mr Sidzumo, which formed the basis of the impugned ruling:
“
MR SIDZUMO:
M’Lord, the witness I was just reading Your Worship,
[interrupted]
COURT:
No, no [interrupted]
MR SIDZUMO:
I was reminding [interrupted]
COURT No, no, no you were cross examining her on the
statement now I also let you proceed to the stage where the State, I
mean State
counsel objected. You were cross examining her
putting to her, her evidence comparing it with what is in the
statement can
you do that if the witness has not owned the statement
she is telling the Court that she cannot remember whether that was
read
and she gave the statement in Xhosa, I do not know in what
language is the statement? Has she owned the statement?
MR SIDZUMO:
It is in English
COURT:
Yes, has she owned the statement?
MR SIDZUMO:
Yes M’Lord, she said does not remember.
COURT:
Yes she has not owned the statement and in terms
of rules you cannot cross examine her on the statement which she has
not owned.
Objection sustained.”
The law
[11]
Our courts have set out guidelines in determining whether a witness
may be cross-examined on a previous statement
made to the police.
In
S v Govender and
Others
[7]
Nepgen J, in relation to whether a state witness had owned a previous
statement made to the police, held that:
“
[I]n the present matter the
cross-examination of the State witnesses, insofar as it was directed
at the contents of their police
statements, was done properly.
In each instance the witness was asked to confirm that he had made a
statement to the police.
The witness was then asked whether
that which he told the policeman was written down; whether it was
read back to him; whether
he was asked to confirm the correctness
thereof; and whether, having done so, he was asked to sign …
on the statement.
The witness was then asked to identify, with
reference to his signature …, that the statement in question
was in fact the
statement he made. Once confirmation of this
had been obtained, counsel proceeded to go through the whole
statement with
the witness. After each sentence, or on occasion
after a whole paragraph, had been read to the witness he was asked
whether
he had in fact said to the police what had been read to him
…. Sometimes the answer was in the affirmative, other
times not. Having gone through this exercise, the witness was
then referred to differences between such witness’ earlier
evidence and those portions of the police statement which he had
confirmed reflected what he had told the police. In some
instances these differences were marked, in other the differences
could be described as subtle. Where appropriate, the witness
was asked why certain facts mentioned during his evidence did not
appear in the statement, with it being suggested that the reason
therefor was that he had not told the police. The witness was
asked why there were such contradictions and/or omissions,
thereby
being afforded an opportunity to provide an explanation.”
[8]
[12]
The approach adopted by Nepgen J has been followed in a long line of
decided cases;
[9]
it is the
process used in criminal trials in dealing with previous statements
made to the police. In the present matter,
it seems that the
court
a quo
was
alive to this when it made the ruling regarding the
cross-examination. From the portions of the proceedings quoted
above
it is clear that the learned Judge required Mpenyana to first
own the statement before she could be cross-examined on it.
From the transcript it seems the learned Judge in all probability
based his ruling on the fact that Mpenyana had testified that
she did
not remember whether the statement had been read back to her after
the policeman had written it down.
[13] It is available to a
cross-examiner to ask whether a witness has previously made a
statement in conflict
with what he or she has said while on the
stand. At the time of questioning the witness about the
previous statement, the
examiner need not show the witness the
statement. When the witness denies having made the previous
inconsistent statement,
then the examiner must produce the previous
inconsistent statement to rebut the denial by the witness.
[14] The transcript of the court
a
quo
reveals that when the objection was raised, Mr Sidzumo was
still in the process of laying the basis for his cross-examination on
the previous inconsistent statement. From the above quoted
portions of the transcript it is clear that Mr Sidzumo was still
developing his cross-examination. He had asked Mpenyana
questions relating to whether she had made the statement; whether
the
signature appended thereon was hers; whether after having dictated
the statement to the police officer, the police officer
had read it
back to her. He then proceeded to put it to her that during her
examination-in-chief she had stated that she
was outside when the
gunshots were being fired.
[15] At the moment the objection was
raised the learned Judge interrupted Mr Sidzumo. There is
nothing
from a reading of the record pointing to the learned Judge
affording Mr Sidzumo the opportunity to address him on the objection
raised; he made the ruling without having given Mr Sidzumo an
opportunity to address him on whether the objection should be
sustained or overruled.
[16] The importance of
cross-examination should not be underestimated. No doubt, a
trial can be fair or
not fair resultant purely from how the
cross-examination was conducted or permitted to unfold.
[17]
Section 35(3)(i) of the Constitution and section 166 of the Criminal
Procedure Act
[10]
govern the
right to cross-examine a witness in criminal proceedings.
Section 35(3)(i) affords an accused person a right to
“
adduce
and challenge
”
evidence. Cross-examination is the equivalent of challenging
evidence. The right to cross-examine a witness
in criminal
matters is also found in our common law. Our courts have long
recognised the importance of affording an accused
person the
opportunity to challenge the evidence of the State.
[11]
[18]
The mainstay of the appellant’s grounds of appeal is that the
ruling made by the court
a
quo
in refusing the
appellant an opportunity to cross-examine Mpenyana amounted to a
violation of the appellant’s right to a fair
trial. In
relation to cross-examination, the Supreme Court of Appeal in
S
v Ndhlovu
[12]
held:
“
The
Bill of Rights does not guarantee an entitlement to subject all
evidence to cross-examination. What it contains is the
right
(subject to limitation in terms of s 36) to ‘
challenge
evidence’
.”
[13]
[19]
The importance of cross-examination was correctly highlighted by the
court in
S v
Shaw.
[14]
In that matter the court held that “
[t]esting
all reasonable possibilities fully is indispensable not only for
discrediting evidence and for enabling the witnesses
to refute
attacks on their credibility, but also for eliciting for the trier of
fact, not speculation, but explanations which,
if reasonable, would
enable appropriate inferences to be drawn. Failure to examine
and cross-examine effectively may not
only bar a party from later
seeking to draw inferences from facts not attested to or disputing
the truth of a witness’s evidence,
but also impair the ability
of the trier of fact to draw the most reasonable inferences
.”
[15]
[20] Section 166(1) of the CPA, in so
far as relevant hereto, provides:
“
An accused person may
cross-examine any witness called on behalf of the prosecution at
criminal”.
[21]
Section 166(1) affords an accused the right to cross-examine a
witness in a criminal trial. As already
stated, the right to
cross-examine a witness on previous statements made to the police has
checks and balances. In the present
matter the appellant had to
meet the requirements as highlighted by Nepgen J in
Govender
.
[16]
In order for counsel for the defence to cross-examine Mpenyana he
first had to ensure that she had “
owned
”
the statement as set out in
Govender.
It remains to be
seen, however, whether it is open to a court to rule against the
cross examination of a witness while counsel is
still in the process
of following the steps outlined by Nepgen J. The appellant
contends that the ruling made by the
court
a
quo
was “
premature
and invalid
”.
[22] It is trite law that before
counsel for the State or the accused begins cross-examining a witness
on a previous
inconsistent statement, counsel has a duty to lay the
basis for such cross-examination. One might argue that the
process
outlined by Nepgen J indicates the basis which must be laid
by counsel before beginning with the cross-examination. The
State,
in its heads of argument, conceded that a “
judicial
officer should realize that whenever questioning has to start on a
previous inconsistent statement, he has a duty to see
to it that the
cross-examiner first laid the basis for cross-examination.
Failure to observe this rule may adversely affect
the probative value
of such evidence
.”
[23] The State’s main argument
is that counsel for the appellant was not laying the basis for the
cross-examination
regarding the previous inconsistent statement but
rather actually cross-examining Mpenyana on a statement she had not
owned.
The record points to the contrary.
[24]
In
S v Shabangu
[17]
the court had to decide whether the accused had been properly
convicted taking into that he had not had legal representation
throughout
the trial. The court observed that “
it
is impossible to say what effect a properly conducted defence could
have had on the ultimate result
.”
[18]
Those remarks apply with equal force in the instant matter. It
is impossible to state what the outcome would have been
had the
appellant been afforded the opportunity to pursue cross-examination
of Mpenyana in relation to the previous inconsistent
statement.
[25] In my view, the impugned ruling
constituted a misdirection and resulted in the violation of the
appellant’s
right to a fair trial.
[26] It now remains to consider
whether the violation is justifiable in terms of section 36.
The Court
in
Ndhlovu
confirmed the approach adopted by courts
in dealing with rights as contained in the Bill of Rights. All
rights are subject
to limitation in terms of section 36 of the
Constitution. This means that even if one finds that the
appellant’s
right to a fair trial was violated, if the
violation is justifiable in terms of section 36 then the trial would
be rendered fair.
I hasten to answer the question at hand in
favour of the appellant.
[27] As already pointed out, a whole
range of scenarios could have emerged had the cross-examination on
the statement
been allowed. Mpenyana could have contradicted
herself in many respects with the result that the court
a quo
might have ended up not relying on her testimony at all.
[28] In the light of the aforegoing,
the appeal falls to be upheld with the result that the matter ought
to be
referred back to the court
a quo
for the prosecution to
be commenced
de novo.
[29] The order that I grant is the
following:
(a) the appeal succeeds;
(b) the conviction and sentence
of the appellant are set aside; and
(c) the matter is remitted
to the court
a quo
so as to start
de novo.
S M MBENENGE
JUDGE OF THE HIGH COURT
I agree
F DAWOOD
JUDGE OF THE HIGH COURT
I agree
B HARTLE
JUDGE OF THE HIGH COURT
Attorney for the
appellant
Mr P Daubermann
Instructed by
Peter Daubermann
Attorneys
PORT ELIZABETH
Counsel for the
respondent
Ms N Tokota
Instructed by
The DPP’s Office
BHISHO
Date heard
: 29 April 2016
Judgment delivered
: 31 May 2016
[1]
The appellant was convicted and sentenced by Dukada
J.
[2]
Due to the passing on of Dukada J, the application for leave
to
appeal was heard and granted by Stretch J.
[3]
Act 108 of 1996.
[4]
In dealing with matters where
the State has failed to put up argument regarding section 36 the
Constitutional Court, in
Moise
v Greater Germiston Transitional Local Council: Minister of Justice
and Constitutional Development Intervening
(Women's
Legal Centre as Amicus Curiae)
[2001] ZACC 21
;
2001 (4) SA 491
(CC), at para [19],
held:
“
It is also no longer doubted
that, once a limitation has been found to exist, the burden of
justification under section 36(1)
rests on the party asserting that
the limitation is saved by the application of the provisions of the
section. The weighing up
exercise is ultimately concerned with the
proportional assessment of competing interests but, to the extent
that justification
rests on factual and/or policy considerations,
the party contending for justification must put such material before
the court.
It is for this reason that the government functionary
responsible for legislation that is being challenged on
constitutional
grounds must be cited as a party. If the government
wishes to defend the particular enactment, it then has the
opportunity —
indeed an obligation — to do so. The
obligation includes not only the submission of legal argument but
placing before court
the requisite factual material and policy
considerations. Therefore, although the burden of justification
under section 36 is
no ordinary onus, failure by government to
submit such data and argument may in appropriate cases tip the
scales against it and
result in the invalidation of the challenged
enactment”
[5]
This was the approach adopted
by the Constitutional Court, in
Phillips
and Another v Director of Public Prosecutions and Others
[2003] ZACC 1
;
2003
(3) SA 345
at para
[22]
, where the High Court had failed to embark
on a section 36 analysis because the parties had not raised it.
The court held
that it must “
embark
on that exercise
”
although it was not raised.
[6]
My emphasis.
[7]
2006 (1) SACR 322
(E).
The court in
Govender
repeated the
guidelines as set out in
S
v Mafaladiso en Andere
2003 (1) SACR 583
(SCA) at 593i-j.
[8]
Ibid
at
327b-g.
[9]
See
Gabriel
v S
[2010] 2 All
SA 212
(SCA);
Meje
and another v Mocumi
[2015]
JOL 32802
(FB);
Ludick
v S
[2011] JOL
27816
(ECG);
S v
Mahlangu and another
[2012]
JOL 29277
(WC);
Meje
and Another v S
[2014]
ZAFSHC 98.
[10]
51 of
1977 (the CPA).
[11]
Rex
v Togoe and Another
1929 GWLD 4
;
S v
Makaula
1961 (4)
SA 600
(E);
Rex v
Landro, Penny and Mears
1929 TPD 300
;
S v
Nkomo
1975 (3) SA
598 (N).
[12]
2002
(6) SA 305 (SCA).
[13]
Ibid
at para [24].
[14]
[2011]
ZAKZPHC 32.
[15]
Ibid
at para [113].
[16]
Supra.
[17]
1976
(3) SA 555
(A).
[18]
Ibid
at 558F.