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[2015] ZAKZPHC 32
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Zulu v S (AR 69/13) [2015] ZAKZPHC 32 (19 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA,
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE No. AR 69/13
DATE: 19 JUNE 2015
THABANI RAYMOND
ZULU
................................................................................................
Appellant
Versus
THE
STATE
...........................................................................................................................
Respondent
JUDGMENT
VAN ZÿL, J.: (VAHED, J and
NZIMANDE, AJ concurring)
1. On 21 June 2006 the late Mr Boy
Joseph Masango, the Municipal Manager of Ulundi, KwaZulu-Natal was
shot and killed in the driveway
of his home in Mdabonkulu Street,
Ulundi. The appellant appeared before Rowan A.J., sitting with two
assessors, charged with the
murder of the deceased. It was alleged in
the indictment that the charge was subject to the provisions of
section 51 and Schedule
2 of the
Criminal Procedure Amendment Act 105
of 1997
. The appellant was at all material times legally represented
and entered a plea of not guilty. He was, however, convicted as
charged
at the conclusion of his trial and sentenced to imprisonment
for life.
2. At the commencement of the appeal
proceedings before us we sought to clarify whether the appeal was
intended to be one against
conviction only, or whether the appeal was
also against the sentence imposed by the trial court, in the event of
the appeal against
the conviction being unsuccessful. This enquiry
was necessitated by the fact that the written application for leave
to appeal,
which was only delivered some three years later, sought
leave in respect of both conviction, as well as sentence. However,
the
leave to appeal as granted to this court related only to
conviction and was silent on the issue of sentence.
3. Whilst counsel’s written
argument on the appeal was restricted to the issues relevant to
conviction, it was unclear whether
this resulted merely from an
adherence to the terms of the order granting leave, or because the
appellant in fact did not intend
persuing any appeal on sentence,
irrespective of the outcome of the appeal on conviction. We
accordingly posed this question to
Mr Marimuthu, who appeared for the
appellant in the appeal before us. He wisely asked for the appeal
hearing to stand down in order
to clarify the position with the
appellant who was also present at court. Upon resumption of the
proceedings counsel advised that
in terms of his instructions no
appeal would be pursued in respect of sentence, but that the appeal
was restricted to the issues
arising in relation to the conviction
only. The appellant duly confirmed his instructions to counsel and
the appeal then proceeded
accordingly.
4. In his written argument counsel for
the appellant had at the outset suggested that the reference
contained in the indictment
to
section 51
and Schedule 2 of Act 105
of 1997 was ambiguous, in that it did not inform the appellant with
sufficient clarity whether the state
intended the charge of murder to
fall into the categories envisaged by Part 1 or Part II of the
Schedule. Generally the necessity
for informing an accused person in
good time of the sentencing provisions to be relied upon by the state
arises because “a
fair trial demands that an accused has the
requisite knowledge in sufficient time to make critical decisions
which will bear on
the outcome of the case as a whole, including
sentence.” (per Gorven J in S v Langa
2010 (2) SACR 289
(KZP)
at page 304e).
5. In the present instance the warning
as contained in the indictment was extended timeously, but the
suggestion arising was that
it was not sufficiently accurate to
adequately serve its intended purpose. I am unpersuaded of the
validity of such criticism.
The caveat thus extended, although in
general terms, suggested quite unequivocally that the state might, at
the sentencing stage,
contend for life imprisonment as contemplated
in section 51(1) read with Part I of Schedule 2 and in addition, the
appellant was
legally represented throughout the duration of his
trial.
6. However, in addressing the court
after clarifying the nature and extent of the appeal, counsel for the
appellant did not refer
to this issue, which accordingly was not
debated before us. Since offences falling into the different
categories contemplated in
Parts I and II attract sentences of
differing severity and in the light of the abandonment of any appeal
against sentence, I find
it unnecessary to say anything further in
this regard.
7. The main thrust of the argument on
behalf of the appellant relevant to conviction related to attacks
firstly upon the admissibility
of the statement made by the appellant
to Capt. S. J Smith (exhibit “L”) and secondly to the
subsequent pointing out
and accompanying statement made to Capt. B.
F. Zondo (exhibit “M”). These attacks may conveniently be
dealt with separately.
8. The first issue related to the
alleged irregularity tainting the admissibility of the statement to
Capt Smith. This arose from
the interpretation of the communications
between Capt. Smith and the appellant which resulted in the statement
received as exhibit
“L”. The interpreter involved was the
late Detective Warrant Officer J. M. Mbatha, at the time a member of
the investigative
unit.
9. The second attack was based upon the
claim by the appellant that the statement to Capt Smith, as well as
the subsequent pointing
out to Capt Zondo, were not freely and
voluntarily made and should consequently not have been admitted in
evidence against him.
10. A third issue which was raised and
developed in the course of the argument before us concerned the
sufficiency of the evidence
implicating the appellant, even if one or
the other, or both, contested statements were held to have been
correctly admitted in
evidence by the trial court.
11. The appellant claimed that the late
Detective Warrant Officer Mbatha had been an active, if not the
leading participant in his
interrogation and the assaults perpetrated
upon him prior to the appellant making his statement to Capt Smith.
The trial Court
was alive to the difficulties arising and embarked
upon a careful and comprehensive analysis of the evidence and
evaluation of
the witnesses before concluding that the state
witnesses were reliable and rejecting the evidence of the appellant
as unreliable.
12. It goes without saying that it is
undesirable for an officer of the same unit as the investigative team
to act as interpreter
during the taking of a statement from an
accused, particularly if the statement amounts to a confession.
Indeed Capt Smith indicated
that if he had realised at the time that
Warrant Officer Mbatha was part of the investigative unit then he
would not have used
him as interpreter. But it should be remembered
that the trial court accepted the evidence of Warrant Officer
Thabethe that the
late Warrant Officer Mbatha had not been party to
the interrogation of the appellant and had rejected the latter’s
claims
that he was assaulted by Warrant Officer Mbatha.
13. Mr Du Toit, who appeared for the
State in the appeal before us, relied upon S v Nzama and Another
2009
(2) SACR 326
(KZP) at paragraph 31. In the light thereof counsel
submitted that Warrant Officer Mbatha’s membership of the unit
was not
fatal to the admission of the statement and that it could
nevertheless be received in evidence as having been freely and
voluntarily
made. In the light of the trial court’s factual
findings I am of the view that the late Warrant Officer Mbatha’s
membership
of the investigative unit did not per se justify the
rejection of the statement made by the Appellant to Capt Smith.
14. In arriving at a conclusion as to
whether the state has discharged the duty of proving that the
statement to Capt Smith and
the pointing out and accompanying
statement to Capt Zondo were freely and voluntarily made without
undue influence, a court needs
to consider all the evidence placed
before it. In my view the trial count did that and critically weighed
the individual elements
of the available evidential material.
15. Both Capt Smith as well as Capt
Zondo favourably impressed the trial court. It also found persuasive
detail in the statements
attributed by each of these witnesses to the
appellant. On both occasions and before different officers, they
recorded that the
appellant’s stated motivation for admitting
his involvement in the murder of the deceased was his heartfelt
remorse for what
he had done. At the pointing out before Capt Zondo
the witness also recorded his observation of actual tears of emotion
shed by
the appellant at the time of professing his remorse.
16. At the conclusion of the trial
within a trial the court below ruled the statement by the appellant
to Capt Smith, as well as
his pointing out and accompanying statement
to Capt Zondo admissible in evidence. I cannot fault such ruling in
all the circumstances
of this case.
17. A court of appeal is not at liberty
to interfere with the factual findings of the trial court in the
absence of material misdirections
or irregularities. In such
circumstances the findings of the trial court are presumed correct
unless the recorded evidence demonstrates
the contrary. (S v Monyane
2008 (1) SACR 543
(SCA), Ponnan, JA at para 15). It is also well
recognised that the trial court enjoys advantages in the evaluation
of the testimony
presented before it which a court of appeal cannot
experience.
18. In the present matter the trial
judge produced a careful well-reasoned and insightful analysis of the
evidence as summarised
in the judgment of the court. Consideration
was given to any weaknesses in the evidence of the different
witnesses called by the
State. Such evidence was evaluated against
the background of the evidence as a whole. Following a comprehensive
review of the evidence,
the trial court effectively arrived at the
conclusion that the evidence against the appellant was sufficiently
compelling and the
evidence of the appellant so unpersuasive that a
conviction of murder was justified. Such conclusion is also
consistent with the
provisions of
section 209
of the
Criminal
Procedure Act 51 of 1977
with regard to the conviction of an offender
based upon his own confession.
19. In the final analysis I am of the
view that there are no grounds upon which this court may legitimately
interfere with the conviction
of the appellant. On the contrary, I
consider that the guilt of the appellant was properly established
beyond any reasonable doubt.
It follows that the appeal against
conviction cannot succeed.
20. I accordingly propose that the
appeal against the conviction of the appellant of murder be
dismissed.
VAN ZYL, J.
VAHED, J.
NZIMANDE, A.J.
CASE INFORMATION
Appellant’s Counsel: Adv P
Marimuthu
Instructed by the Justice Centre
Pietermaritzburg
Respondent’s Counsel: Adv J
du Toit
Instructed by the DPP, (KZN)
Pietermaritzburg
Date of Hearing: 27 January 2014
Date of Judgment: 19 June 2019