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[2016] ZAGPPHC 975
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Molaudzi v S (A422/2015) [2016] ZAGPPHC 975 (29 November 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
CASE
NO: A422/2015
29/11/2016
In
the appeal of:
BETHUEL
MOLAUDZI
Appellant
and
THE
STATE
Respondent
Full
Court Quorum: Mothle J;
Molahlehi
J et Davis AJ.
Date
of Hearing: 28 October 2016
Date
of Judgment: 29 November 2016
JUDGMENT
MOTHLE
J
Introduction
1.
This is an appeal against conviction and sentence imposed by
the Honourable Mr Justice Legodi in the High Court of South Africa
(Circuit Court for the Northern District) held at Makhado on 13 May
2005. The appeal has been referred to the Full Court of the
Gauteng
Division with leave of the Supreme Court of Appeal dated 22 September
2014, following the refusal of the application for
leave to appeal by
the trial Court on 30 November 2006.
2.
The appellant was convicted of three counts, being one count
of robbery with aggravating circumstances; one of common assault; and
one of murder read with Part 1 of Schedule 2 of Act 105 of 1997.
3.
On 5 September 2006 he was sentenced to 10 years direct
imprisonment for robbery, 12 months imprisonment for assault and 20
years
imprisonment for murder. The Court ordered that the 12 months
sentence should run concurrent with the 10 years sentence which
effectively
meant the appellant would serve 30 years imprisonment.
4.
This appeal raises the question whether the alleged pointing
out of crime scenes by the appellant, was made freely and
voluntarily.
In particular the appropriateness of the presence of the
arresting and investigating police officer at the pointing out, which
police officer is also alleged to have shot the appellant during
arrest and made threats to shoot him again if he does not co-operate
during the pointing out.
5.
There was a considerable delay from the time the application
for leave to appeal was refused by the High Court up until the matter
came before the Supreme Court of Appeal by way of petition.
6.
It is clear that the delay in prosecuting this appeal occurred
as a result of the non-availability of the trial record of
proceedings
in the High Court. Due to the absence of the record of
trial proceedings, it became necessary for the prosecution and the
defence
to approach the Honourable Mr Justice Legodi, the presiding
trial Judge, for the reconstruction of the trial proceedings from his
notes in Court.
7.
On 30 June 2016, the Honourable Mr Justice Legodi met with
Adv. Steynberg for the appellant and Adv. Vorster for the State as
well
as Mr Ndlovu, the interpreter, to reconstruct the trial
proceedings. The appellant was personally present during the
proceedings
of the reconstruction of the record.
8.
The presiding Judge was able, from his trial proceedings
notes, to reconstruct and electronically record a summary of the
evidence
relating to the pointing out, a transcribed copy of which
was provided to the Full Court.
9.
The additional documents before the Full Court are in three volumes.
Volume 1 contains the judgment and sentence of the High
Court, the
application by the appellant for leave to appeal as well as the
judgment on the application for leave to appeal. Volume
2 comprises
mainly copies of correspondence between the various officials in the
Department of Justice as well as the Registrars
of the Court,
together with the copy of the photo album of the crime scenes and
autopsy. Volume 3 comprises the copies of the various
exhibits
starting with exhibit "E" which is the statement regarding
an interview with the suspect; exhibits "F"
and "G"
being extracts from the police occurrence book; exhibit "H"
the warning statement; exhibits "J"
and "K" are
the standard form or
pro forma
document dealing with guideline
questions concerning the constitutional rights of the suspects as
well as the statement concerning-the
pointing out of the alleged
crime scenes.
Background
10.
During or about July and September 2003 in the area around
Levubu Farms near Makhado, Limpopo, there was a series of robberies
committed,
one of which resulted in the murder of a farmer. The
appellant was arrested for these crimes on 11 November 2003.
11.
It appears from the record that at the time of his arrest, the
appellant had been shot in the left arm. The police took a warning
statement from him on the day of his arrest and the following day
conducted a pointing out. The Court refused to admit the warning
statement but admitted the evidence relating to the pointing out,
which became the only evidence linking Appellant to the commission
of
these offences and the only reason for his conviction.
12.
The following evidence concerning the pointing out by
Appellant is reflected in the reconstructed record, the exhibits and
the judgment
of the trial Court:
12.1
The arresting and investigating officer Inspector Makusela,
testified that appellant was arrested at approximately 22HOO on 11
November
2013. This evidence is disputed by appellant who states that
he was arrested in the afternoon of that date;
12.2
During the said arrest, the appellant was shot in the arm. He
testified that it was the said Makusela who shot him in the arm,
while
Makusela denies this allegation;
12.3
The pointing out occurred on 12 November 2013 and conducted by
Superintendent Carel Smith. Smith was assisted by an interpreter
Inspector Magidi. They were also accompanied by another member of the
South African Police Service, being a photographer;
12.4
During the interview with appellant and before going out to
pointing out of the scene, Smith wrote down in a pro forma document,
answers to certain questions stated therein. One of these questions
inquired whether appellant was injured. Smith recorded that
indeed
appellant was injured on the arm.In his observations, also recorded
on the proforma statement, Smith indicates that he saw
appellant's
arm being strapped with a white bandage which had spots of blood on
it. Smith did not enquire from the appellant, the
circumstances
relating to the shooting as well as whether appellant knows the
person who shot him;
12.5
Later in his evidence in a trial within a trial, appellant
testified that he was shot by the investigating officer Makusela who
also assaulted and threatened him to make the pointing out failing
which he will shoot him again. Appellant says he never told Smith
that he was threatened by Makusela.
12.6
At the pointing out he was instructed to stand and point out
in a particular direction while photographs were taken of him. He saw
Smith writing something which he does not know and was not read back
to him;
12.7
The appellant further testified that at the scenes of pointing
out, the very same investigating officer Makusela was present. This
evidence of the appellant concerning the presence of the
investigating officer on the scene is confirmed by the interpreter
Magidi.
The appellant testified that he was assaulted by Makusela at
the scene of the pointing out but this is denied by Magidi who
testified
that Makusela was present at the scene but did not
participate in the pointing out;
12.8
In the reconstructed record, the presiding Judge wrote down
that Makusela, during his evidence, denied that he was even present
at the scene of the pointing out; and
12.9
The reconstructed record further shows from the notes of the
presiding Judge that there was evidence by the appellant to the
effect
that the interpreter Inspector Magidi was the one who
identified the scenes. Exhibit J records that he was also the driver.
Appellant
testified that he was instructed to stand and point while
pictures were taken of him.
13.
After the trial within a trial, the trial Court provisionally
admitted the evidence relating to the pointing out. Further evidence
was led in regard to the commission of the offences with no
additional evidence linking the appellant to any of the crime scenes.
At the end of the trial, the Court pronounced that the provisionally
admitted evidence relating to the pointing out is finally
admitted
into the record.
The
legal
principles.
14.
Section 35 of the Constitution of the Republic of South Africa, 1996
provides for the rights of an arrested person in particular
one who
is in the custody of the police. One of the fundamental rights in
Section 35 is the right against self-incrimination. It
is this right
which is the foundation of the provisions of Sections 217 to 220 of
the Criminal Procedure Act, 51 of 1977 ("CPA'J.
These sections
deal with the admissibility of confessions (s217)
1
;
admissibility of facts discovered by means of inadmissible
confessions (s218)
2
;
confessions not admissible against another (219) and admissibility of
admissions by an accused (s220).
15.
Section 218 (2) of the CPA provides:
"(2)
Evidence may be admitted at criminal proceedings that anything was
pointed out by an accused appearing at such proceedings
or that any
fact or thing was discovered in consequence of information given by
such accused, notwithstanding that such pointing
out or information
forms part of
a
confession or statement which by law is not
admissible in evidence against such accused at such proceedings."
16.
In
S v Sheehama
3
the court held that section 218(2) does not apply to an
involuntary pointing out. This principle was confirmed in
S v
January; Prokureur-generaal, Natal v Khumalo
4
.
A pointing out has to be conducted freely and voluntarily.
17.
In order to give expression to the Constitutional rights of
arrested persons, in particular those in police custody, a body of
rules
have evolved over the years in regard to the approach required
of the Court in determining whether the arrested person made these
admissions, confessions or pointing out freely and voluntarily. The
Supreme Court of Appeal in
S v Abbott
5
held thus:
"...
as
a
result of recommendations made by the Bench over the
years, with reference to questions which ought to
be asked
particularly by magistrates before an accused's confession is
recorded, standard departmental forms had come into being
which were
used by magistrates and police officers for confessions and paintings
out (i.e. to establish that an accused was indeed
acting freely and
voluntarily). An official who used such
a
form had to be
meticulous in making the various preliminary enquiries, and in
recording the accused's replies thereto. However,
it was the trial
Court which ultimately had to
decide whether the accused had
acted freely and voluntarily, and
a
failure to comply with the
relevant departmental prescripts did not necessarily result in the
accused's statement being inadmissible."
18.
Consequently, in instances where the State intends to rely on
this self-incriminating evidence, it has to prove beyond reasonable
doubt that the arrested person making a self-incriminating statement
was not assaulted, injured, threatened with assault or injury
or in
any other way forced or pressurised to make that statement.
6
Evaluation
of
evidence
19.
In this case there are four significant areas of the evidence
which came out in the trial-within-a-trial. These are the following:
19.1
That Appellant told Smith that he was injured during his
arrest. Smith records that he saw that the left arm of Appellant was
strapped
in a bandage which had spots of blood. Smith did not make
any further enquiry about this incident as indeed he was under no
obligation
to do so
7
.
The trial Court should have considered whether the version of the
appellant in regard to how he sustained his injuries, raised
doubt
about the alleged freeness and voluntariness of the pointing out. As
stated in
S
v Abbott
above, it is the trial
Court that must make the determination;
19.2
At the conclusion of the first trial-within-a-trial to inquire
into the admissibility of the warning statement, which the
prosecution
described as a confession, the court concluded thus,
without giving detailed reasons: “
that the state has not
proved to (sic) beyond reasonable doubt that the accused had made
a
voluntary statement”.
8
This
raises the question why the appellant would refuse to voluntarily
make an incriminating warning statement but agree to do an
incriminating pointing out?
19.3
The trial Court dismissed as being not material, the contradictions
between Smith and Magidi in regard to the evidence whether
the
statements of the pointing out were read back to the appellant at the
end of the pointing out. Smith testified that they were
not while
Magidi states that they were read back to appellant. Further, the
trial court dismissed as inconsequential the evidence
of Smith where
he testified that he inquired from the appellant about any threats
made to him, but could not indicate where he
wrote down these
questions and their answers;
19.4
The appellant testified that prior to and during the pointing
out, the investigating officer Makusela was making threats of further
assault and threats to shoot him again. The trial Court dismissed the
appellant's version of the threats during the pointing out,
but
failed to pronounce on the threats made by the Investigating officer
prior to the pointing out;
19.5
Inspector Makusela when testifying for the State in the
trial-within- a-trial, denied that he was present at the scene of the
pointing
out. This denial is recorded as follows
9
:
"Makusela
denied that he was
...
it
is
not quite clear, but it
is
written Makusela denied that he was present
Was
he lying?
0
ja, this
is
the question Makusela denied that he was
present.
Was
he lying? Answer, he would be lying."
20.
During cross-examination of Smith, the latter admits the
presence of the escort vehicle and the fact that the appellant was
frightened
10
:
The judgment of the trial Court further refers to the evidence of
Inspector Magidi
11
thus:
"He
indicated that at no stage during the pointing out, was the accused
ever threatened in his presence.
He indicated that he
did see Makusela during the pointing out and that Makusela was in the
other vehicle, which was escorting them."
(the
Full Court's emphasis)
21.
From the judgment it is clear that there was an escort police
vehicle which followed Smith, Magidi and the appellant's transport
to
the various locations for the pointing out. Smith does not testify
that he saw Makusela at the scene, while Magidi confirms
Makusela's
presence.
22
The presence of the investigating officer at the scene where the
appellant was taken to point out should raise questions as to
whether
the allegations concerning threats to the appellant, could not be
reasonably possibly true. The threats, if made, would
no doubt have a
bearing on the question whether the appellant made the pointing out,
if he did, freely and voluntarily.
23.
It seems to me that ordinarily the mere presence of the
investigating and/or arresting officer at the scene of pointing out
would
per se
not necessarily vitiate the process. However, in
this context, the investigating officer, who is also the arresting
officer, is
alleged to have shot the appellant during arrest the day
before the pointing out and made threats to do so again if appellant
does
not cooperate. These set of circumstances, should have been
considered and accepted by the trial Court. In addition, the
investigating
officer in his evidence denied being present at the
scene of pointing out, contrary to the evidence of his fellow
officer, Magidi
and both testifying for the State.
24.
The trial court should have considered and attached sufficient weight
to the conspectus of the evidence. There is in my view,
sufficient
evidence to cast doubt on the State's case. As stated in the trial
Court judgment
12
the evidence allegedly uncovered during the pointing out could still
not link appellant to the commission of these crimes.
25.
Having regard to the issues raised above, I am of the view
that the trial Court erred in admitting the evidence of the pointing
out. Consequently, the appeal should succeed and both the conviction
and sentence imposed by the trial Court should be set aside.
26.
In the premises I make the following order:
1. The appeal succeeds;
2. The conviction and
sentence imposed by the High Court on the appellant is set aside and
replaced by the following:
"The
accused is found not guilty and is discharged."
_____________________
SP
MOTHLE
Judge
of the High Court
Pretoria
I
agree:
__________________________________
E
M MOLAHLEHI
Acting
Judge of the High Court
Pretoria
I agree:
___________________________________
N
DAVIS
Acting
Judge of the High Court Pretoria.
For
the appellant:
Mr S Moeng
Appellant's
Attorney Pretoria Justice Centre Pretoria
For
the Respondent:
Adv. S Scheepers
Directorate
of Public Prosecutions, Gauteng.
1
S
v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC).
2
Appellate
Division judgment in the two appeals that were heard together and
reported under the citation. S v January; Prokureur-General,
Natal v
Khumalo
1994 (2) SACR 801
(A).
3
[1991] ZASCA 45
;
1991
(2) SA 860
(A).
4
1994
(2) SACR 501
(A), at 809 a-b. The two appeals were heard together.
5
The
head note to the judgment, cited as
1999 (1) SACR 489
(SCA ).
6
See
also an article by Meintjies-Van Der Walt in the 1996 South African
Journal of Criminal Justice on page 83, under the title
“S v
Melani and Two Others (CC9/93 29 March 1995) (ECD): public policy
and the fruits of the poisoned tree – the
admissibility of
evidence of a pointing out obtained in breach of the Constitution”
7
See
S v Abbott supra, where the Supreme Court of Appeal held that on the
facts, the failure of the officer in casu to ask further
questions
to elucidate the alleged assault was not standing alone, a
sufficient ground for excluding the pointing out.
8
Page
eleven (11) of the judgment, lines 2 to 5.
9
See
page 9 line 14 of the reconstructed record.
10
Page
16 lines 7 to 19 of the trial court judgment.
11
Page
17 lines 12 to 15 of the trial court judgment.
12
Page
21 lines 9 to 24 of the trial court judgment.