S v Ralukukwe (098/05) [2006] ZASCA 64; 2006 (2) SACR 394 (SCA) (26 May 2006)

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[2006] ZASCA 64
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S v Ralukukwe (098/05) [2006] ZASCA 64; 2006 (2) SACR 394 (SCA) (26 May 2006)

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Case number : 98/05
Reportable
In
the matter between :
SAMSON
SHONISANI RALUKUKWE APPELLANT
and
THE STATE RESPONDENT
CORAM : CAMERON, CONRADIE
et
CLOETE JJA
HEARD : 16 MAY 2006
DELIVERED : 26 MAY 2006
Summary:
Criminal Procedure Act, 51 of 1977
,
s 291
;
Law of Evidence
Amendment Act, 45 of 1988
,
s 3:
A confession of one accused cannot be used against a
co-accused; an
admission
can, provided the application to admit it in evidence is made
timeously;
a confession, and an admission by a co-accused not admitted in
evidence, must be left entirely out of account.
Neutral
citation: This judgment may be referred to as Ralukukwe v S [2006]
SCA 64 (RSA).
___________________________________________________________________
JUDGMENT
CLOETE JA
/
CLOETE JA:
[1] On 27 March 2000 the appellant and five others were
convicted by the Venda High Court of murder and of robbery with
aggravating
circumstances. The appellant was subsequently sentenced
to life imprisonment on the murder charge and to fifteen years’
imprisonment
on the robbery charge. The trial judge (Hetisani J)
refused leave to appeal and the appeal is accordingly with the leave
of this
court.
[2] The admissible evidence against the appellant was to
the following effect. On 15 November 1998 accused 1 travelled with
accused
2, 3, 4 and 5 from the Reef to Venda in a white BMW with GP
number plates. Accused 1’s purpose in undertaking the journey was,
according to him, to make enquiries from the appellant, who owned a
security business, about tender proposals for the provision of
security officers in Venda. The purpose of accused 2 and 3 was,
according to them, to visit a traditional healer; this evidence was
rejected by the trial court. Accused 4 and 5 did not give evidence.
The appellant, who was accused 6, said that he met with his
co-accused
on 15 November at his office in Sibasa for the purpose
stated by accused 1.
[3] After the meeting, the appellant made arrangements
for accused 1, 2 and 3 to stay overnight at an hotel in the area. The
appellant
went personally to more than one establishment and he
himself may have paid for their accommodation in whole or in part.
Accused
4 and 5 stayed the night with the appellant at his own home.
[4] Early the following morning accused 1 drove to
Giyani in the BMW with accused 2 and 3. All three of them testified
that they began
to experience mechanical problems with the BMW. On
their way back from Giyani, they came across the appellant who was
driving his
light delivery van with his wife on the front seat and
accused 4 and 5 on the back. According to accused 1, this meeting was
purely
coincidental; he told the appellant of the problems he was
experiencing with the BMW; and the appellant guided him to the
premises
of the deceased at Muraga where the appellant said they
would find a mechanic. The deceased was indeed a mechanic. The
appellant
also said that the meeting with accused 1, 2 and 3 was
coincidental, but he said that it took place on the road outside the
deceased’s
premises and he was corroborated by his wife on this
point. The appellant denied pointing out the premises of the deceased
to accused
1 for any purpose; on his version he had a completely
pointless conversation with accused 1 before driving away.
[5] After the two groups parted ways outside the
deceased’s premises, the appellant drove to Sibasa with accused 4
and 5. Accused
1, armed (to the knowledge of accused 2 and 3) with a
firearm, and accused 2 went into the yard of the deceased’s
premises. Accused
3 stayed outside in the BMW. In the yard accused 1
asked two employees of the deceased where he would find a mechanic,
as he was
experiencing car problems. The employees told accused 1
that the person he was looking for was in the house. Accused 1 and 2
went
to the house and repeated their enquiry, but the deceased’s
wife told them that the deceased was not at home (which was not true;
he was sleeping in the main bedroom of the house). Accused 1 and 2
then left the premises, as did the two employees; but accused
1 and 2
returned almost immediately and asked the deceased’s wife if they
could use the telephone, which request she refused. An
argument
ensued between accused 1 and the deceased’s wife in the kitchen of
the house during the course of which accused 1 fired
a shot. The
deceased’s wife then ran up the passage to the bedroom where the
deceased had been sleeping. The deceased appeared,
holding a firearm.
Accused 1 fired a number of shots at him, fatally wounding him.
Accused 1’s version that he acted in self defence
was rejected by
the trial court.
[6] Accused 1 then drove accused 2 and 3 to Sibasa in
the BMW and parked in front of the post office. Many policemen were
in the area;
they had been alerted to what had happened at the
deceased’s premises and they were on the lookout for a white BMW
with GP number
plates, and its occupants. One of these policemen,
Sergeant Madzungunya, gave the following evidence. He said that he
saw the appellant
outside the Ramakulukusha building with a person he
did not identify. The appellant was talking on a cellular telephone
and he overheard
the appellant say that things were bad; that the
police were all over the place; and that he wanted to hide his people
behind the
Ramakulukusha building. The appellant then beckoned to
accused 4 and 5 and sent them behind the building, where they hid
away and
where they were subsequently arrested. Before accused 4 and
5 were arrested, according to Sergeant Madzungunya, he went into the
Ramakulukusha building and overheard accused 1 making a telephone
call during the course of which accused 1 said that he did not
see
anyone. Shortly thereafter accused 1 was arrested in Sibasa. So were
accused 2, who was found in possession of the deceased’s
firearm,
and accused 3, who attempted to throw away a 9mm Pietro Beretta
firearm that the ballistic evidence established had been
used to
shoot the deceased.
[7] On 19 November 1998 accused 1 made a statement to
the magistrate at Thohoyandou. In the statement accused 1 said inter
alia that
on 15 November he and the other accused he had conveyed to
Venda met the appellant at the appellant’s office in Sibasa; that
at
this meeting they planned how they would rob a bank at Sibasa the
following day; that the appellant told the rest of them that they
could obtain a vehicle for use during the robbery from the deceased’s
premises; and that the appellant had handed him a Pietro
Beretta
firearm. The statement was admitted after a trial within a trial, but
the parts to which I have referred were repudiated
by accused 1 when
he testified in his defence: according to him, they were fabrications
by the police which he repeated before the
magistrate because he had
been tortured by the police.
[8] Before us, the appellant’s counsel sought to have
accused 1’s statement excluded in evidence against his client
because of
the provisions of
s 219
of the
Criminal Procedure Act, 51
of 1977
, which reads:
‘
No confession made by any person shall be admissible
as evidence against another person.’
On the other hand, counsel representing the State sought
to have the statement admitted in terms of the provisions of s
3(1)(c) of
the Law of Evidence Amendment Act, 45 of 1988 (‘the 1988
Act’) which provides as follows:
‘
3(1) Subject
to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings,
unless ─
…
(c) the court, having
regard to ─
(i) the
nature of the proceedings;
(ii) the nature of the evidence;
(iii) the
purpose for which the evidence is tendered;
(iv) the
probative value of the evidence;
(v) the reason why the evidence is not given by the
person upon whose credibility the probative value of such evidence
depends;
(vi) any
prejudice to a party which the admission of such evidence might
entail;
(vii) any
other factor which should in the opinion of the court be taken into
account,
is
of the opinion that such evidence should be admitted in the interests
of justice.’
[9] The
Criminal Procedure Act does
not define what a
‘confession’ is. In
R v Becker
1
De Villiers ACJ construed s 273 of the Criminal Procedure and
Evidence Act, 31 of 1917, which dealt with the admissibility of
confessions.
In doing so the learned acting chief justice considered
several other sections of that Act including s 286 which provided
that a
court or jury trying a person for any offence might convict
him of such offence solely on his “confession of that offence” if
proved to the satisfaction of the court, in spite of the fact that
the confession was not confirmed by other evidence ─ subject
only
to the requirement that the fact that the offence had actually been
committed, was proved by evidence
aliunde
. Having considered s
286, the learned acting chief justice continued:
2
‘
What
is obviously contemplated is that a court or jury should be entitled
to convict an accused person in these circumstances only
if there is
an unequivocal acknowledgment of his guilt, the equivalent of a plea
of guilty before a court of law. The admission by
an accused of facts
which, when carefully scrutinised and, may be, laboriously pieced
together, may lead to the inference of guilt
on the part of the
accused, however consonant that may be with the meaning of the term
“confession” in the abstract, is not a
confession within the
meaning of the Act. To look upon such a statement as equivalent to a
plea of guilty would be most dangerous.
The legislature itself has
supplied the test which has to be applied to extra-judicial
confessions, namely whether the acknowledgement
of guilt
on the part of the accused is such that, if made in a
court of law, it would have amounted to a plea of guilty.’
It was therefore the view of De Villiers ACJ that
‘confession’ should be given the same meaning wherever it
appeared in the Act;
and that for a statement to qualify as a
confession, and therefore to be subject to the provisions of s 273
which governed its admissibility,
every element of the offence
charged had to be admitted. This approach has been applied time and
again in this court and in provincial
divisions; and
Becker’s
case has been cited by the Constitutional Court
3
as authority for the proposition that:
‘
A confession by definition is an admission of all the
elements of the offence charged, a full acknowledgement of guilt.’
[10] The
Criminal Procedure Act lays
down less stringent
requirements in
s 219A
for the admissibility of an admission, and a
distinction between the two is drawn in express terms in subsection 1
which begins:
‘
Evidence of any admission made extra-judicially by
any person in relation to the commission of an offence shall, if such
admission
does not constitute a confession of that offence and is
proved to have been voluntarily made by that person, be admissible in
evidence
against him at criminal proceedings relating to that offence
. . .’.
The
Criminal Procedure Act contains
no section,
corresponding to
s 219
, that prohibits the use of an admission by one
accused against another. The consequence is that such an admission,
which constitutes
hearsay evidence as defined in subsection 3(4)
4
of the 1988 Act, can be used against a co-accused if it is admitted
in terms of subsection 3(1) of that Act:
S v Ndhlovu
;
5
Molimi v S
;
6
whereas a confession cannot be admitted against a co-accused because
of the provisions of
s 219
of the
Criminal Procedure Act read
with
the preamble to the 1988 Act (‘subject to the provisions of any
other law’) and subsection 3(2) of the latter Act, which
provides:
‘
The
provisions of subsection (1) shall not render admissible any evidence
which is inadmissible on any ground other than that such
evidence is
hearsay evidence.’
7
[11] The justification for the approach which continues
to confine the operation of s 219 to confessions narrowly construed
is not
hard to find. Courts are reluctant to exclude evidence when
the interests of justice ─ the touchstone for the admission of
hearsay
evidence in terms of s 3(1) ─ require its admission.
[12] I return to the facts of the present appeal. The
statement made by accused 1 does not satisfy the requirements set out
in
Becker
. On the contrary, it suggests that accused 1 was
justified in shooting the deceased because the deceased aimed his
firearm at accused
1 after accused 1 had told him to drop it.
Section
219
of the
Criminal Procedure Act is
accordingly not applicable and
the argument on behalf of the appellant based on that section is
without merit.
[13] The attempt by counsel representing the State to
rely on s 3(1) of the 1988 Act is equally without merit. In contrast
to both
Ndhlovu
8
and
Molimi
9
there was no attempt whatever to invoke that section during the
course of the trial; it was never referred to at any stage of the
proceedings. The appellant was never called upon to deal with the
contents of accused 1’s statement and he did not do so. To admit
the statement in evidence against the appellant at this stage of the
proceedings would cause him manifest prejudice.
10
It is plainly in the interests of justice that the guilty should be
punished; but it is equally plainly in the interests of justice,
and
a constitutional requirement,
11
that accused persons should receive a fair trial.
[14] The statement made by accused 1 must accordingly be
left entirely out of account in determining the guilt of the
appellant. It
cannot be used even indirectly as part of a chain of
inferences drawn against the appellant or as corroboration of other
evidence:
R v Kohlinfila Qwabe
12
;
R v Baartman
;
13
S v Serobe
;
14
S v Makeba
.
15
The cases to which reference has just been made deal with the
position where the statement by a co-accused is a confession; but the
position is the same where the statement contains admissions falling
short of a confession ─ see
Nkosi & another v R
16
discussed and applied in
Baartman
.
17
The reason is, as Cameron JA said in
Ndlovu
,
18
‘Hearsay not admitted in accordance with [the provisions of s 3(1)
of 1988 Act] is not evidence at all.’
[15] Without the statement of accused 1, there was no
case against the appellant. The real reason why the accused met at
the appellant’s
office the day before the deceased was killed and
robbed, and the reason why the appellant provided accommodation for
the others,
did not emerge from the evidence admissible against the
appellant. There is no admissible evidence to suggest that the
appellant
pointed out the deceased’s premises to accused 1
(assuming, in favour of the State, that he did) with the intention
that the deceased
should be killed or robbed of his firearm or
anything else, or to suggest that the appellant foresaw either of
these possibilities.
There is not even admissible evidence to show
that the appellant knew that accused 1 was armed; nor can it be
inferred that he must
have known this, because they intended robbing
a bank in Sibasa, inasmuch as there was no evidence admissible
against the appellant
which established that this was their
intention. Indeed, the evidence admissible against the appellant
suggests that the purpose
for which accused 1 went to the deceased’s
premises was because he needed a mechanic. It is pure speculation, on
the admissible
evidence, to suggest that accused 1 went
there to kill or rob the deceased of a vehicle in
accordance with a pre-arranged plan to which the appellant was a
party. Even if
it be accepted that the appellant lied about pointing
out the deceased’s premises to accused 1, this does not necessarily
lead
to an inference of guilt; the lie could equally have been
prompted by a desire to distance himself from the murder and robbery
which
took place there even although he did not foresee the
possibility that either might occur. As Smalberger AJA said in
S v
Mtsweni
:
19
‘
By die beoordeling van leuenagtige getuienis deur ‘n
beskuldigde moet daar, onder meer, gelet word op:
…
(d) Die neiging wat by
sommige mense mag ontstaan om die waarheid te ontken uit vrees dat
hulle by ‘n misdaad betrek gaan word .
. . ’.
The
evidence of Sergeant Madzungunya that after the deceased had been
killed and robbed of his firearm, the appellant hid accused
4 and 5
behind a building in Sibasa takes the matter no further, even
assuming that the appellant and accused 1 were speaking to
each other
during the telephone conversations overheard by Sergeant Madzungunya.
This evidence cannot serve as a foundation for a
finding that the
appellant knew at that stage that the deceased had been killed and
robbed, much less that he intended or foresaw
in advance that this
might happen ─ whether as an end in itself, or in the course of
some nefarious plan to which the appellant
was a party and which had
not yet reached fruition. In short, considering the evidence
admissible against the appellant in its totality,
there is nothing
which establishes that the appellant had the necessary
mens rea
to commit either of the offences with which he was charged, nor is
there anything which establishes that he shared a common purpose
with
accused 1 to commit them.
[16] Counsel representing the State urged upon us during
the hearing of the appeal that proof beyond a reasonable doubt does
not mean
proof beyond all doubt, but on the evidence admissible
against the appellant there is merely a suspicion as to his guilt and
this
does not suffice for a conviction. The appellant’s appeal must
accordingly succeed.
[17] On the above analysis, and to put the position at
its lowest, it would seem that accused 4 and 5 may also have been
wrongly convicted.
Counsel representing the State on appeal could
point to no additional facts which would put them in a different
position to the appellant.
I would accordingly request the Venda and
Bloemfontein Justice Centres, which represented the appellant in this
appeal, to apply
for leave to appeal on behalf of accused 4 and 5 as
a matter of urgency once the necessary powers of attorney have been
obtained.
It would be desirable, particularly in view of the length
of the record, for any appeal by accused 4 and 5 to be heard by this
court
as presently constituted and we have retained our copies of the
record to obviate the expense of a new record being prepared.
[18] In a matter such as the present, the remarks of
Watermeyer JA in
R v Kohlinfila Qwabe
20
are apposite:
‘
I
am aware that in coming to a decision on the question whether an
accused person has committed the crime with which he is charged,
it
is exceedingly difficult for the person called upon to decide that
question to discard from consideration facts and circumstances
which,
though inadmissible as evidence, have nevertheless been brought to
his knowledge. It is a difficult task even for the trained
judicial
mind . . .’.
The learned trial judge would have been greatly assisted
in this task had he determined the facts found proved against each
accused
on the basis of the evidence admissible against him.
[19] The appeal is upheld. The conviction of the
appellant and the sentence imposed on him are set aside.
______________
T D CLOETE
Concur:
Cameron JA JUDGE OF APPEAL
Conradie JA
1
1929
AD 167
at 171-2.
2
At
171-2. The punctuation in the 1929 AD law report does not accord
with the punctuation in the original judgment filed in the archives
of this court. The passage quoted retains the original punctuation.
3
S
v Zuma
[1995] ZACC 1
;
1995 (1) SACR 568
(CC)
para 27.
4
The
relevant part of that subsection reads as follows:
‘
For
the purposes of this section ─
“
hearsay
evidence” means evidence, whether oral or in writing, the
probative value of which depends upon the credibility of any
person
other than the person giving such evidence’.
5
2002
(2) SACR 325
(SCA).
6
[2006]
SCA 38 (RSA)
unreported judgment delivered on 29
March 2006.
7
S
v Makeba
2003 (2) SACR 128
(SCA) para 14.
8
Above,
n 5.
9
Above,
n 6.
10
cf
S v Ramavhale
1966 (1) SACR 639
(SCA) at 650h-651h.
11
In
terms of s 35(3) of the Constitution.
12
1939
AD 255
at 260-3.
13
1960
(3) SA 535
(A) at 542B-E.
14
1968
(4) SA 420
(A) at 425A-H.
15
Above,
n 7, at para 14.
16
1950
(1) PH H91 (A). The statement of the first appellant, which was
wrongly used to convict the second appellant, did not amount
to the
confession. It was in fact exculpatory inasmuch as the first
appellant said she had no knowledge that the medicine which
the
second appellant gave her and which she put into the deceased’s
milk, was poison ─ see p 172 of the PH report.
17
Above,
n 13 at 542E-543A where the case is cited as
R v Nkosi and Zulu
but the year of the law report is incorrectly given as 1959 ─ the
mistake does not appear in the original judgment filed in the
archives of this court.
18
Above,
n 5 at para 14.
19
1985
(1) SA 590
(A) at 594B-D.
20
Above,
n 12 at 262-3.