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[2016] ZAGPPHC 1025
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Manyathela v S (A215/2016) [2016] ZAGPPHC 1025 (13 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: A215/2016
Date:
13/12/2016
Not
reportable
Not
of interest to other judges
Revised
In
the matter between:
KLAAS
DINGAAN MANYATHELA
APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
PRETORIUS
J.
(1)
The appellant was charged as accused 3 with murder, housebreaking
with the intention to rob and robbery, attempted murder,
possession
of an unlicensed firearm and possession of ammunition and convicted
in the High Court, Pretoria on 17 August 2006 on
all charges except
the charge of possession of ammunition. He was legally represented
throughout his trial. He was sentenced to
life imprisonment on the
charge of murder and a further 28 years' imprisonment on the other
charges.
(2)
This appeal is before us as a result of the appellant petitioning the
Supreme Court of Appeal for leave to appeal as the
court a
quo
refused to grant leave to appeal. Leave to appeal has only been
granted against conviction.
BACKGROUND:
(3)
On 13 November 2004 Mr and Mrs van Dyk was attacked on a farm in the
Cullinan district in their house. During the incident
Mr van Dyk was
fatally stabbed with a knife and Mrs van Dyk suffered a gunshot wound
to her lower body.
(4)
A firearm belonging to Mr van Dyk was taken during the incident. Mrs
van Dyk, who survived the attack, observed only one
perpetrator and
was unable to identify the person.
(5)
Accused 1 and 2 were arrested the following day. The appellant was
arrested precisely one year after the incident, allegedly
on
information provided by Monty Mokwena who, at some stage, shared a
cell with the first accused. Accused 1 is the cousin of the
appellant
and he had made a report to Mr Mokwena.
(6)
The appellant based his appeal on the fact that the trial judge had
erred by admitting the statement, made by the appellant
to a
magistrate, as evidence and did not evaluate the evidential weight
thereof. A further ground for the appeal is that the trial
judge
cross examined the appellant on issues not raised in
evidence-in-chief. According to the appellant the trial judge erred
in rejecting the appellant's version.
(7)
It is so that the appellant was arrested a year after the incident
after a certain Monty Mokwena informed the investigating
officer,
Inspector Bester, of the appellant's involvement in the crimes. Monty
Mokwena shared a cell with accused 1 at some stage,
and accused 1
supplied him with certain information which lead him to inform
Inspector Bester, the investigating officer. This
information lead to
the arrest of the appellant.
(8)
Inspector Bester's evidence was that after he had arrested the
appellant he had interviewed the appellant who confirmed
that he was
present at the scene of the crime. The appellant indicated to
Inspector Bester that he was willing to make a statement
to a
magistrate. A trial within-a-trial was held in court to
determine whether the statement made by the appellant to the
magistrate is admissible as evidence, as the appellant averred that
he had been assaulted during his arrest and that he was told
what to
tell the magistrate. This was the appellant's version in court.
(9)
The appellant was taken to a doctor after his arrest and prior to
making the statement to the magistrate. The doctor noted
no injuries
to the appellant. During the trial-within-a-trial the appellant
exaggerated the extent of his assault and deviated
from the version
his counsel had put to the witnesses.
(10)
It is important to refer to the form completed during his appearance
in front of the magistrate, as well as the magistrate's
evidence.
(11)
According to the notes on the form, the magistrate asked the
appellant:
"Have you been threatened, forced or encouraged by
the police or anyone else to make this statement?",
to which
the appellant replied:
"No, but I was assaulted by the police
yesterday when arrested. No visible injuries."
His reply to
the following question whether he had been
'threatened with
assault or action or any other prejudice whatsoever if you decline to
make
a
statement to the magistrate?"
was
"No".
(12)
He indicated that he had been assaulted by the police when he was
arrested and when he was asked the reason for the assault
his reply
was:
"They said I must take out or give them the firearm."
He further indicated that he had no wounds or injuries. At the
question whether he expected any benefits by making the statement,
he
replied: "/
am only prepared to tell the truth."
He
informed the magistrate that nobody had told him what to say in the
statement. His version to the magistrate is confirmed by
the question
Adv More, his counsel, put to the magistrate, confirming the reason
he had given the magistrate for the assault. No
further reasons for
any assault to make a statement were provided to the magistrate.
(13)
The appellant argues that the magistrate should have investigated the
matter of the assault further. I disagree if the questions
and
answers which were supplied in front of the magistrate, as set out
above, are taken into consideration.
(14)
The court is aware that the admissions made to the magistrate are the
only evidence against the appellant. As the statement
made to the
magistrate by the appellant is the only evidence against him, the
court has to deal with it carefully.
(15)
In
Chauke
and Another v State
[1]
the
court held:
"The question
whether
a
statement was freely or voluntarily
made, is
usually determined at
a
trial-within-a-trial. The
admissibility of
a
statement has to be carefully and
consciously considered and ruled upon, particularly where the
statements in question are the only
evidence upon which
a
conviction is
sought to be premised. In this regard
see
S
v Mkwanazi
1966
(1)
SA
736
(A);
S
v
Radebe 1968 (4) 410 (A) 4140-E;
S
v Zulu
1998 (1)
SACR
7
(SCA) 13d-f and Commentary on the Criminal Procedure Act 24-57."
(16)
In
S
v Zulu
[2]
Grosskopf
JA held:
"The first
appellant's statement is the only evidence implicating him in the
commission of these crimes. It was held in
S
v Mkwanazi
(supra) at 745G
-
H that
a
'confession in such
a
case is not necessarily "suspect" but the circumstances
may be such as to calf for
a
particularly careful assessment
by the presiding Judge of the question of the freedom and
voluntariness of the confession'."
(17)
The main submission by the appellant is that the facts set out in the
magistrate's form do not correspond with the facts of
the matter and
are therefore not reliable. According to the appellant he and his two
co-accused had entered the house through the
door, although the facts
show that the perpetrators had gained entry to the house through a
broken window. It was accepted by the
court a
quo
that the
appellant had not been schooled and that the appellant was the source
of the content of the statement. The court found
the evidence to be
reliable.
(18)
It is so that where the incriminating statement contains a material
untruth the court has to evaluate the evidence carefully.
(19)
The learned judge dealt extensively with the trial-within-a-trial in
his judgment. He dealt with Magistrate Mabunda's evidence
and found
that there was no indication whatsoever to the magistrate that the
appellant had made the statement due to threats or
being assaulted or
that he had been told what to say. This was confirmed as the doctor,
who had examined him before he was taken
for the statement, found
that there were no injuries. The version of the appellant put to
Inspector Bester was that the appellant
had been assaulted by being
hit with an open hand and that a jacket was thrown over his head and
cold water was poured over him.
This in contrast to the appellant's
evidence that he had been hit with an open hand, shocked and that a
stick was placed between
his hands and legs. No cogent
explanation was offered for this deviation and why he had not
informed his counsel of this
version. The further complaint that the
court had cross examined the appellant in an improper manner
cannot be sustained.
After careful scrutiny of the record, it is
clear that he was clarifying certain issues.
(20)
The learned judge had after considering all these facts come to the
conclusion:
"Ek was tevrede
dat die staatsgetuies die waarheid gepraat het en die beskuldigde se
getuienis verwerp kon word op hierdie
aspekte en
om
daardie
rede het ek die bekentenis toe toegelaat."
(21)
It cannot be said that the learned judge had misdirected himself in
this instance. I cannot find any reason to find that the
finding of
the court a
quo
should be interfered with. It is clear that
the appellant was one of the perpetrators as found by the learned
judge and that he
was correctly convicted on the charges.
(22)
In the result I make the following order:
The appeal is dismissed
with costs.
_____________________
Judge
C Pretorius
I
agree.
_____________________
Judge
R G Tolmay
I
agree.
_____________________
Judge
N B Tuchten
Case
number
: A215/2016
Matter
heard on
: 2
December 2016
For
the Appellant
: Adv F van As
Instructed
by
: Pretoria Justice Centre
For
the Respondent
: Adv M Jansen van Vuuren
Instructed
by
: Director of Public Prosecutions
[1]
Chauke v The State (70/12) [20121 ZASCA 143 (28 September 2012) at
paragraph 21
[2]
1998(1)
SACR 7 at 13 d-e