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[2015] ZAKZPHC 9
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Mhlongo v S (AR107/14) [2015] ZAKZPHC 9 (30 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWA
ZUZL-NATAL DIVISION, PIETERMARITZBURG
CASE
NO. AR 170/14
In
the matter between:
THOKOZANI
THEMBINKOSI
MHLONGO
.............................................................
APPELLANT
and
THE
STATE
...................................................................................................................
RESPONDENT
J
U D G M E N T
STEYN
J
[1]
The appellant appeals against conviction and sentence, with the leave
of the Court of first instance. He was convicted
of three
counts of murder, read with section 51(1), Part 1 of Schedule 2 of
Act 105 of 1997, unlawful possession of a firearm,
i.e. contravening
the provisions of section 3 read with sections 1, 103, 117,
120(1)(a), section 121 and schedule 4 and
section 151
of the
Firearms
Control Act 60 of 2000
, read with
section 51(2)
,
Part 2
of schedule 2
of Act 105 of 1997 and a count of unlawful possession of ammunition,
i.e. contravening section 90 read with sections
1, 103, 117,
120(1)(a), 121 read with schedule 4 and section 151 of Act 60 of
2000.
[2]
Upon conviction the appellant was sentenced to life imprisonment in
respect of counts 1, 2 and 3, 25 years’ imprisonment
in respect
of count 4 and 1 year’s imprisonment in respect of count 5.
[3]
Pivotal to this appeal is the finding of the trial court that the
firearm found at the KwaMashu hostel was connected to the
three
murders, and in addition that the search and seizure was
constitutionally fair. It is questionable whether the seizure
of the firearm could have been accepted by the Court
a
quo
as admissible evidence against the
appellant. Mr Mngadi, acting on behalf of the appellant,
submitted that the Court
a quo
was misdirected in finding that it was the appellant that had brought
the firearm into the hostel and that the Court erred in finding
that
there was a sufficient nexus between the seizure of the firearm and
the commission of the crimes.
When
the matter was heard, Ms Naidu appeared on behalf of the respondent
and submitted oral argument. The heads of argument
were however
compiled by Mrs Alamchand. Ms Naidu in her address conceded
that the evidence of Captain Gcwensa was not satisfactory
and that
the respondent was in a difficult position to defend the challenges
raised by the appellant.
[4]
On a factual basis it is important to consider the evidence relating
to the alleged pointing-out. The first witness that
testified
on behalf of the State was Warrant Officer Bongani Mncube. He
has 33 years’ experience in the SAPS and worked
at the KwaMashu
police station. According to him on 10 September 2008 he was called
out to a crime scene and when he arrived at
the crime scene, Warrant
Officer Petros was already at the scene. He later in his
evidence indicated that he might have been
mistaken as to the
identity of the warrant officer on the scene. This concession
came about when it was pointed out to him
by the State advocate, Ms
Mzila, that in fact one of the accused’s name was Petros.
According to Mncube he noticed that the three male
deceased persons had sustained multiple gunshot wounds. He
established
that all three of the deceased came from the same area
i.e Mbongolwane. The bodies were all found at block A19.
He
also searched for exhibits and found cartridges as well as heads
of spent bullets which he took to the KwaMashu police station.
He corrected himself once more and said that the cartridges and spent
bullets were in fact taken by the photographer, a certain
Ms Kirsten
and it was then sent to ballistics. The bodies were removed and
all taken to the Phoenix government mortuary.
I shall return to
the collection of the exhibits at the scene, when I deal with the
evidence of Ms Raw, neé Kirsten.
[5]
Although the incident occurred on the 28
th
September, it was only on 14 October that Officer Mncube established
that the suspects had been arrested and that they may possibly
be
linked to the murders. Amongst those arrested was the
appellant, Thembinkosi Mhlongo, who he then interviewed regarding
the
incident. In his view the appellant was about to say things
that required the assistance of a magistrate. What
transpired
based on the evidence was that an inadmissible confession was
tendered, that was challenged by the legal representative
of the
appellant. It was indicated to the Court
a
quo
that the appellant denied the
admissibility of the statement since he was severely assaulted before
making the statement, accordingly
it was neither voluntarily nor
freely made by him. Officer Mncube stated that the suspects
were arrested by other units.
He insisted that it was merely
coincidental that the appellant was interviewed for the alleged
murders that were committed at KwaMashu
hostel. He requested
the assistance of Superintendent Ndlovu, head of the detectives in
Durban North, to assist him and help
him to get a statement from the
appellant. After this involvement he handed the suspect over to
Warrant Officer Mpanza.
[6]
In cross-examination Mncube stated that Constable Kirsten was not
immediately on the scene but was summoned by him. He
confirmed
that he had found at the scene 40 cartridges as well as some other
projectiles. All of the cartridges were inside
the house,
nothing was found outside according to him. When he was
confronted with the fact that there is a contradiction
between his
and that of Constable Kirsten who confirmed that 43 cartridge cases
were found, he tried to clarify the contradiction
by stating that it
was possible that more were found by her than him. He also stipulated
that as much as he referred to two bullet
heads, it should be born in
mind that he considers heads and projectiles to be one and the same
thing. His evidence in my
view clearly contradicts his earlier
statement when he said that all the cartridges were found inside the
house. It is evidence
of crucial importance and could not
merely be regarded as a mistake.
[7]
Since the admissibility of the pointing-out is so vital, it is
necessary to pause for a moment at
section 218
of the
Criminal
Procedure Act, 51 of 1977
, which reads:
”
Section
218(1)
– Evidence may be admitted at criminal proceedings of
any fact otherwise in evidence, notwithstanding that the witness
gives
evidence of such fact, discovers such fact or obtains knowledge
of such fact only in consequence of information given by an accused
in dealing with such proceedings in any confession or statement which
by law is not admissible in evidence against such an accused
at such
proceedings and notwithstanding that the fact that was discovered
came to the knowledge of such witness against the wish
or will of
such accused.
(2)
– Evidence may be admitted at criminal proceedings if anything
was pointed out by an accused appearing at such proceedings
or that
any fact or thing was discovered in consequence of information and
given by such accused notwithstanding that such pointing-out
or
information forms part of a confession or statement by law is not
admissible in evidence given against such accused.”
[8]
In order to understand the provision in its context it is necessary
to know that the person making or delivering such evidence
through
his conduct must be aware of the consequences thereof. The
Constitutional position post 1994 is very important in
that where
pointings-out are obtained under circumstances where there is no
waiver of rights by the accused, such pointing out
or admission would
be inadmissible.
[1]
Pointings-out are not
per
se
admissible, it must be made freely and voluntarily, in instances
where this is in issue, such admissibility should be proved by
the
State in a trial-within-a-trial.
[2]
It was held that the failure to advise the accused of his right to
legal representation raised the question whether undue influence
had
been brought on him to point out certain places. Where a
pointing-out and accompanying statement are inseparable, the
failure
to advise an accused of his right to legal representation would in
all likelihood amount to undue influence and would make
such
pointing-out inadmissible.
[9]
Accordingly it is important, having due regard to
section 218(1)
that
the evidence will only be admissible if the accused submits to a
pointing-out after having due knowledge of his rights.
[3]
Having considered the ambit of
section 218
, it is necessary to
measure the conduct of the police officers
in
casu
and
the so-called seizure of the firearm against the requirements of
section 218
of the
Criminal Procedure Act. It
is very clear
from the evidence adduced that at the time when the firearm was
handed in to the SAP13 register, it was done so by
Captain Gcwensa.
The SAP13 register per SAP13/1529, reflects that much.
[10]
It is incumbent on this Court to consider what is contained in the
SAP13 register and most importantly the evidence of Officer
Mbatha
that relates to it. Column 5 of the register shows that 279 was
received on the 23
rd
March 2009 and that the Jennings firearm was entered Number 280 in
the register and was however received on 22
nd
March 2009.
[4]
The witness
Mbatha could not explain how this discrepancy came about. The
officer proffered the following explanation:
“
I
just don’t remember what happened, my Lord. If it is
incorrect the recording of the date I cannot recall now but I
am the
one who received both the exhibits.”
[5]
The
errors regarding the handling of the firearm does not end here as
will be seen later in this judgment when the evidence of the
witness
Kirsten is considered.
[11]
When officer Mncube was questioned about the interview he had with
the appellant, he answered as follows:
“
I
assume when you went into the first interview with accused 1 you had
this docket with you which in KwaMashu Cas 235/09/2008.
No
– I was not carrying it because it was in officer Mpanza’s
office.”
[6]
When
Mr Sabela the legal representative of the appellant confronted him
with what was stated in his statement, he said:
“
I
informed the said Thokozane Thembinkosi Mhlongo of his rights as set
out in the Constitution of the Republic of South Arica.
I then
asked him about this case.”
He
was asked if “this case” refers to KwaMashu Cas
235/09/2008 and the response of Officer Mncube was “Yes”.
[7]
When the evidence of Mncube is considered in its entirety, it shows
that he was not consistent in his version, neither was
he truthful.
[12]
The extract from the occurrence book reflects that on the 18
th
March 2009 at 18h55 “Suspect booked out Constable PC Mkhize
booked out suspect Mhlabunzima Mhlongo, SAP14/327/03/2009 and
Siboyelo Nembula on SAPS14/305/03/2009 for further
investigation”.
[8]
During the cross-examination of Officer Mncube he was asked by the
representative of the appellant whether he was aware that
the
appellant was arrested and detained for the case in question.
Mncube’s response to this answer was “I am
not even aware
of the fact that accused was found with a firearm, I have never heard
that.”
[9]
[13]
This brings me to the evidence of Captain Gcwensa which is crucial in
dealing with the appellant’s guilt. In 2008,
he was
merely a warrant officer and he was stationed at the Ntuzuma police
station. On 13 October 2008 he was involved in
what he referred
to as a suspect raid. In other words he was engaging with a
team which fell under the uniform branch following
information of the
most wanted suspects in cases emanating from the KwaMashu hostel.
It had been his evidence that he had
met with an informer on this day
and thereafter assumed his duties when the operation was about to
begin. According to him
he had information which related to Cas
235/09/2008, a triple murder, and moreover that a certain Thokozane
Mhlongo also known
by the name of Bhunu was involved. He
described the suspect to his colleagues and that there is a
possibility that he stays
at A178 Men’s Hostel in KwaMashu.
He proceeded to the given address where a search was conducted and
when he arrived
at the address according to him he knocked on the
door, had members positioned at the windows at the back and front of
the section
and shouted in isiZulu for the people inside to open as
they are police officers and wanted to enter and conduct a search.
He informed the occupants and at 21h30 he and two other members
entered the hostel. According to him he noticed the appellant
inside and he just shouted to him, saying “Hi Thokozane”.
The appellant was leaning against a bed but was not
sleeping and
there were about three people inside the room. He was not
dressed in uniform but he explained to the appellant
that he was
looking for him in Cas 235/09/2008. This is what he said:
“
I
further told him that he must declare the weapon that he brought on
day one he arrived into this particular house. Then
he asked me
how I knew that he brought the firearm with him. I laughed and
said ‘The arm of the law is long’.
Then he started
looking for his clothing because he had tracksuit pants on in the bed
and a vest. Then I said, ‘Now
you are under arrest’
while he was starting moving to himself. Then I explained his
constitutional rights while I instructed
a member to search the
balance of the African males who were in the room, so that he can
leave the room clear.”
[10]
The
witness elaborated to say that he explained to the appellant that he
had the right to point out anything to him that might incriminate
him
in the case and that he had the right to apply to be released on bail
after his arrest and that he had the right to remain
silent. It
is doubtful that the rights mentioned are applicable at a time of an
arrest but for purposes of the appeal I need
not decide upon the
issue. When the appellant was arrested another person in the
room shouted “Don’t leave your
firearm here.”
According to Warrant Officer Gcwensa the appellant then said to him
“Let's go”.
[11]
It is at this point that Gcwensa took the appellant to a dining hall
and under the table found a firearm. According
to Gcwensa he
kept on asking the appellant where the firearm was, and that is when
the appellant showed towards the table.
He asked the appellant,
“Is this the firearm you were talking about?” and the
appellant said “yes”.
He specifically asked:
“Is it yours” and he said “yes”.
[12]
The firearm was taped underneath the cement table in the dining hall
with sellotape. It was a 9mm Norinco. The
appellant was
asked whether he had a licence for the firearm, whereupon the
appellant just laughed and said “No I can’t
have a
licence”. Importantly this witness then informed the
appellant that that he was arresting him on charges of
possession of
an unlicenced firearm without a licence as well as having ammunition
without a licence. The record reads as
follows:
“
The
rights were explained to him that he’s got a right to a legal
practitioner of his choice or if he can’t afford one
that the
State would provide one with the service of a legal practitioner and
to be careful of anything he says to me which might
be used as
evidence against him in a court of law and he
has
got a right to be released on bail.”
[13]
When
the evidence adduced by the State is analysed it appears that there
are a number of contradictions regarding the appellant’s
arrest
on possession of an unlawful firearm.
[14]
Returning to the facts, the Court
a quo
was of the view that
it should honour an agreement between the State and defence regarding
the evidence tendered by the appellant.
This in my view
constituted an irregularity. Not only was the Court never a
party to such agreement, assuming that one can
agree to such
procedure, the appellant’s testimony during the
trial-within-a-trial related to the specific circumstances
on which
he challenged the so-called confession. This is how the Court
a
quo
dealt with the issue:
“
At
this stage I need not say anything more about those proceedings
during the trial-within-a-trial, save to state that at the conclusion
of the State case counsel for accused No 1 argued that there had been
agreement between him and counsel for the State that the
evidence led
in the trial-within-a-trial will constitute evidence in the main
trial in respect of the accused. Although the
Court was not
party to this agreement and this agreement was not placed on record
at the appropriate stage,
we
are of the view that, in order not to unfairly prejudice either the
accused or the State, this agreement will be acknowledged in
this
judgment and the judgment proceeds on the basis that there had been
such an agreement with the concurrence of the Court.
[14]
(My emphasis.)
It
is my considered view that every accused person, as of right, is
entitled to adduce evidence and such election should be exercised
at
the end of the State’s case.
[15]
[15]
In consideration of the judgment on the merits, it appears that the
Court
a
quo
was alive to the fact that there was no direct evidence that linked
the appellant with the crime, and accordingly the evidence
of the
Norinco pistol was the only evidence that connected him to the
crime. The evidence of the seizure and of the firearm
and the
admissibility thereof was wholly dependent upon the evidence of
Gcwensa. It was Gcwensa who informed the appellant
that he was
looking for him in respect of a murder and he asked the appellant to
produce the weapon that he had brought into the
premises when he
arrived there. The hearsay evidence of the witness who said
“don’t leave your firearm here”
was admitted
without the witness being called and the Court ought to have excluded
it.
[16]
[16]
The Court
a quo
cautiously and diligently analysed all the evidence at the
trial-within-a-trial. Yet if one considers the cautious
approach
in the evaluation of Colonel Ndlovu’s memory, that
approach was not followed through in evaluating the evidence in the
main
trial. As much as the mistakes by Ndlovu were just too
many to account for as human error, that yardstick should also have
been applied to the conduct of Sergeant Raw and her collection of the
exhibits in the main trial. I do not consider it necessary
to
list all the mistakes by Raw, suffice to say that no reliance should
have been placed on her evidence. The pointing-out
by the
appellant remains the only evidence that connected the appellant to
the offences. Not only does the pointing-out not
fulfil the
requirements of
section 218
of the
Criminal Procedure Act on
a number
of levels, the firearm was discovered at a place where everyone in
the hostel had access to and that everyone used on
a regular basis.
The respondent, quite rightly in my view, conceded that the State
committed a comedy of errors which ultimately
all operate in favour
of the appellant. In the absence of any direct evidence, there
is nothing that links the appellant
to any of the crimes. The
State had simply failed in its task, i.e. to prove the guilt of the
appellant beyond reasonable
doubt before the Court
a
quo
.
[17]
Accordingly I propose that the appeal be upheld and that the
convictions be set aside.
_____________________
STEYN
J
_____________________
K
PILLAY J
_____________________
MADONDO
J
Appeal heard on : 30
January 2015
Counsel for the
appellant : Mr S Mngadi
Instructed by :
Justice Centre, Durban
Counsel for the
respondent : Ms S Naidu
Instructed by :
Director of Public Prosecutions, Durban
Judgment
handed down on : 24 February 2015
[1]
See
S
v Gaza and Others
1998 (1) SACR 446D
at 448c-d.
[2]
See
S
v Yawa
1994 (2) SACR 709 (SE)
[3]
Also
see
S
v January; Prokureur-Generaal, Natal v Khumalo
1994 (2) SACR 801
(A) at 808i-j.
[4]
See
exhibit “G” of the record.
[5]
See
page 56 of the record.
[6]
See
record page 88.
[7]
See
record page 84.
[8]
See
record page 487.
[9]
See
record page 85.
[10]
See
record page 94.
[11]
See
record page 95.
[12]
See
record page 95 lines 24 and 25.
[13]
See
record page 96.
[14]
See
record page 359 lines 11-21.
[15]
See
section 151(b)
of the
Criminal Procedure Act.
[16
]
See
S
v Litako and Others
2014 (2) SACR 431
(SCA).