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[2013] ZAFSHC 213
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Segopolo v S (A72/2012) [2013] ZAFSHC 213 (24 October 2013)
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FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Appeal
Number : A72/2012
In
the appeal between:-
LUCKYBOY
JOHN
SEGOPOLO
Appellant
and
THE
STATE
Respondent
CORAM:
EBRAHIM,
J, VAN ZYL, J
et
FISCHER,
AJ
JUDGMENT
BY:
VAN
ZYL J
DELIVERED
ON:
24
October 2013
[1]
This is a full bench appeal against the conviction and sentence of
the appellant.
[2]
The appellant was charged with murder in that it was alleged that he
unlawfully and intentionally killed
I.N, a […] year old (“the
deceased”) between 30 April 2011 and 2 May 2011. In the
Court
a quo
the appellant was accused number 1 of two accused
persons. The case was however withdrawn against accused number
2 at the
commencement of the hearing.
[3]
The appellant pleaded not guilty and his legal representative in the
Court
a quo
, Mr Nel, who is also representing the appellant in
the appeal, indicated on behalf of the appellant that the appellant
denies any
involvement in the alleged commission of the crime.
The appellant was however convicted on the said charge and sentenced
to twenty-one years imprisonment. It was further ordered that
the appellant is not to be released on bail until he has served
at
least two thirds of his sentence. The Court
a quo
granted the appellant leave to appeal against both his conviction and
the imposed sentence.
AD
SENTENCE:
[4]
In the circumstances of this appeal, I consider it apposite to first
deal with the issue of sentence.
[5]
Me Ferreira, on behalf of the State, filed a notice of intention to
apply for an increased sentence
simultaneously with her heads of
argument. A notice of his intention to oppose the application for an
increased sentence was then
filed on behalf of the appellant, as well
as supplementary heads of argument on the issue of sentence.
One of the points
raised in the supplementary heads of argument by Mr
Nel is that the practice whereby the Director of Public Prosecutions
can apply
for an increase in sentence by means of the filing of such
a notice should not be allowed as it is inconsistent with the
constitution
of the Republic of South Africa in that it infringes
upon the appellant’s right to equality and his right to a fair
trial.
[6]
At the time of the hearing of the appeal this very issue was pending
before the Constitutional
Court in that Mr Frank Nabolisa, the one
appellant in the case of
S v CWELE AND NABOLISA
2013 (1)
SACR 478
(SCA), referred the issue to the Constitutional Court under
Case Number 105/12.
[7]
Because the aforesaid issue which was pending before the
Constitutional Court is the same as one
of the essential issues
pertaining to the appeal against the sentence in the current appeal,
we made the following order on the
day of the hearing of the appeal:
“
1. The
appeal in respect of sentence is postponed until finalisation
in the
Constitutional Court of the issue relating to the constitutionality
of the statutory provisions concerning an application
for the
increase of sentence at the instance of the Director of Public
Prosecutions.
2.
Upon such finalisation in the Constitutional Court, the
Director of
Public Prosecutions, Free State, is ordered to re-enrol the appeal in
respect of sentence for hearing.
3.
Judgment on the appeal against the merits of the conviction
is
reserved.”
[8]
I will now deal with the appeal against the merits of the conviction.
AD
CONVICTION:
[9]
The notice of appeal filed on behalf of the appellant reflects the
following grounds of appeal against
the conviction:
“
1.
By accepting the evidence led by the state witness Captain Mojaki.
2.
By admitting the evidence of the search and seizure of
material at
the home premises of the accused.
3.
By finding that the accused lived alone on the premises.”
[10]
Considering the grounds of appeal, I do not intend to refer to the
evidence of all the witnesses. I am only going
to deal with the
evidence which is relevant to the consideration of the grounds of
appeal. I do however deem it necessary to deal
in quite some detail
with the last mentioned evidence.
[11]
I.N, the […..] of the deceased, resided with the deceased in
B[……]. As the mother of
the deceased had passed
away and the father of the deceased was unknown, I.N. took care of
the deceased. On the morning of Saturday,
30 April 2011, I.N. left
their home to attend a meeting. The deceased was at home.
When I.N. returned home that evening,
the deceased was not at home
and I.N. was told by the other children that the deceased was at the
home of a family friend.
The next day I.N. went to the home of
the family friend but did not find the deceased there. After
searching for the deceased
amongst all their relatives without
success, I.N. went straight to the police to report the matter.
She never saw the deceased
again. The appellant was known to I.N.,
they normally greeted one another and they lived in close proximity
to one another.
At
a later stage she handed a denim skirt and a pair of shoes which
belonged to the deceased and which had not been washed since
the
deceased wore them, to the police.
[12]
The […] year old M.S. was good friends with the deceased, they
lived in the same street and used to visit
each other and play
together. M.S. is the daughter of the appellant’s
cousin. Her evidence was presented with
the assistance of an
intermediary. The last day she saw the deceased, they were
playing together in the street when the appellant
came passing by and
called them. He then requested M.S. to go and buy him cigarettes.
At that stage they were all inside
the appellant’s house. The
appellant told M.S. that she had to go alone and that the deceased
has to remain inside the house.
She returned with the
cigarettes and gave it to the appellant. The appellant and the
deceased were still inside the house.
The appellant then sent
M.S. to her grandmother’s house to fetch some food for him.
He again indicated that the deceased
should remain behind with him.
On her return M.S. found the gate of the appellant’s premises
to be locked and she called
out to the appellant, who came out of the
house. She informed him that her grandmother did not have any
food. The appellant
then told her that the deceased had gone to
look for her at her grandmother’s place. She never saw
the deceased again.
When she heard on the following Monday that
the deceased was still missing, she informed the sister of the
deceased that the deceased
had been at the appellant’s place.
[13]
Constable Bongiwe Nkomonye testified that she and Warrant Officer Uys
went to the appellant’s house on 2
May 2011 as a result of a
complaint regarding a missing girl, being the deceased. When
they arrived at the appellant’s
house premises, the gate was
locked and she jumped the gate. She knocked at the front door,
announced that she is a police
officer, but there was no answer.
She went to the kitchen door and also knocked there without getting
any response.
She returned to the front door, saw that it was
not locked and kicked the door to gain entry. Although she
testified during
her evidence in chief that the appellant came to the
door and opened the door when she kicked the door, she readily
conceded during
cross-examination that she cannot clearly recall
exactly how it happened, but it might be as was stated in her
statement, being
that she kicked the door open and found the
appellant in his bed. The appellant denied having any knowledge
of the missing
girl and he denied that there had been any girls at
his place. He also stated that he was staying alone.
Constable
Nkomonye then asked his permission to search the premises
since he was the last person who had been seen with the missing girl,
to which the appellant agreed. They did not find anything
during the search but informed the appellant that they were still
arresting him because according to the information they had he was
the last person who had been seen with the said girl.
[14]
Captain Baseka Mojaki, who is stationed at the Provincial Detective
Psychology Motivation Crime Unit, received
a phone call on Monday, 2
May 2011, regarding a missing girl in B[……].
Captain Mojaki drove to B[……]
and met with Captain
Matasane. He, together with Captain Matasane and other police
officers, went to the police cells where
the appellant was held.
He introduced himself and stated the purpose of his visit.
Captain Mojaki then explained the
appellant’s constitutional
rights, including his right to remain silent, should he say anything
it can be used against him
in Court and also his right to legal
representation. The appellant indicated that he understood his
rights. The appellant
then told him that he, together with his
friend Tshediso, had murdered the missing girl. The appellant
explained that he strangled
the deceased at his house, which house he
described to have certain rooms at the back which were still in the
process of being
built. The appellant advised the Captain that
his reason for killing the deceased was that a traditional doctor in
Bloemfontein
requested the fat of a female person for which he was
prepared to pay R15 000-00. After he murdered the
deceased, he
took her body to the stadium where they tried to burn it
in a steel basin. However, when they put her body in the fire,
the
smell was so strong that they could not stand it. They
decided not to continue with the burning of the body of the deceased
and placed her remains in a bag, which was then taken by Tshediso.
The appellant took the ashes inside the basin to a place in
Mountainview and dumped the ashes there. The appellant also
advised Captain Mojaki that some of the ashes will be found in
the
toilet at his house. The appellant indicated that he was
prepared to point out where the incident took place and to repeat
his
statement to a Magistrate. They arranged to do it the following
day as it was already late by the time the interview
terminated.
However, the next day when Captain Mojaki arrived at B[……]
the appellant indicated that he
had a changed his mind about the
pointing out and making a statement to a Magistrate, as he was scared
of the community. He indicated
that he will instead explain to
Captain Mojaki where to go in order to find the respective scenes he
described to Captain Mojaki.
Captain Mojaki and other police
officials then went to the stadium and found the remains of the ashes
where the fire had been prepared.
They then also went to the
appellant’s house. At the back of the house where some rooms
were still under construction, there
was a toilet. Captain
Mojaki found something inside the toilet which had not been flushed
away, with some of the same substance
on the rim of the toilet.
In the yard amongst some trees he also found an item which looked
like a jersey and an item resembling
a bone. He told the other
police officers that they should leave those items where they were
found as the investigating officer,
Warrant Officer Norman Orren, and
a forensic team had already been called out to the scene. Whilst
Captain Mojaki was still at
the house of the deceased, some of the
other police officers came across a dumping site near the house of
the appellant where some
body parts were also found. Captain Mojaki
then also attended that scene.
During
cross-examination the totality of the version of Captain Mojaki with
regard to what the appellant had allegedly told him
in connection
with the crime and the appellant’s alleged involvement, were
denied on behalf of the appellant.
It
is important to record that before Captain Moyaki testified about the
contents of the aforesaid alleged confession, Mr Nel was
requested to
indicate what the appellant’s stance was regarding the
admissibility of it, to which he replied as follows (record,
p. 16,
lines 6 -11):
M’lady,
my instructions from accused are the following and that is that the
specific version that this witness will put forward
is not what he
told this witness, so in actual fact he is disputing the contents of
what was said. We are not going to dispute
the aspect of whether it
was voluntary or not, so there is not going to be a trial within a
trial.”
[15]
Sergeant Smit, attached to the Local Criminal Record Centre, was part
of the forensic team who gathered evidence
from the house premises of
the appellant as well as from the dumping site. She was also
responsible for photographing the
scene, being the photographs
contained in exhibit “A”. She explained how they
used the substance called Blue
Star to detect blood at the scene,
even where the blood was not visible to the naked eye or where the
blood had been wiped clean.
In this manner blood was found on the
kitchen floor, on the table and tablecloth in the kitchen, on the
sitting room floor, on
the bedroom floor and on a doorstep. The
witness explained that where the blue colour was visible over a huge
area on the
kitchen floor as reflected in photo 20, it is an
indication that an attempt was made to clean the surface.
In
addition Sergeant Smit also gathered seven swabs for DNA analysis,
which were marked “BIO A1” to “BIO A7”.
Four of these swabs were subjected to DNA testing, namely “BIO
A1” which was taken from visible bloodspots found outside
the
backdoor, “BIO A3” which was taken from the kitchen floor
where blood was suspected to be and where Blue Star was
applied, “BIO
A4” which was also taken from the kitchen floor where suspected
blood was and “BIO A7” which
was blood found above the
handle of the toilet referred to earlier. Sergeant Smit also
photographed a burned substance which was
found on the rim of the
same toilet as well as in the water of the toilet. She
explained that at that stage there was no
water available in
Brandfort and that is probably the reason why the substance in the
toilet could not be flushed away.
The dumping site, to
which Captain Mojaki also referred in his evidence, was 297 metres
away from the residence of the appellant.
This witness also
photographed and collected human remains from the said dumping site
which was found scattered all over the dumping
site. This
included several bones, a skull (with teeth) and part of a human
vertebra. Parts of some of these bones were black
in colour and
seemed as though they had been burnt.
[16]
Warrant Officer Whelan, attached to the Biology Unit of the Forensic
Science Laboratory as a Forensic Analyst,
testified that he was
requested to establish the DNA profile of the deceased by means of
the denim skirt of the deceased, exhibit
“1”, and the
pair of shoes of the deceased, exhibit “2”. He
thereafter compared the said DNA profile
of the epithelial cells on
the denim skirt and the one shoe with the DNA profile of the
vertebra, the tooth, and the swabs “BIO
A1”, “BIO
A3”, “BIO A4” and “BIO A7”. There
was a perfect DNA match and he concluded
that the vertebra, the tooth
and the blood on the swabs belonged to the deceased. His
affidavit in terms of
Section 212
of the
Criminal Procedure Act, 51
of 1977
, reflecting the aforesaid results, was handed in as exhibit
“D”.
[17]
Warrant Officer Norman Orren, the investigating officer, met with the
appellant for the first time at the charge
office after the appellant
had been arrested. He was called to the respective scenes of
the crime after the various pieces
of evidence had been discovered
and he visited the house of the appellant with Sergeant Smit.
He testified that there were
various reasons why they did not have a
search warrant. In the first place Constable Nkomonye and
Warrant Officer Uys advised
him that the appellant had given them
permission to search his house premises. Furthermore he was of
the view that if he
had applied for a search warrant, it would have
been granted. Timing was also a factor, especially because that
particular
day, 2 May 2011, was a public holiday and he feared that
exhibits could be destroyed or lost during the time it would take to
apply
for a warrant. In this regard he explained that the crime
scene did not only consist of the inside of the locked house, but
also of the outside surroundings of the premises.
During
the cross-examination of Warrant Officer Orren, the appellant for the
first time denied that he gave the police permission
to enter and
search his house. It was then put to Warrant Officer Orren that the
said entry was unlawful and that all processes
that followed the
unlawful entry were also unlawful and unconstitutional.
[18] The
appellant made certain admissions in terms of
Section 220
of the
Criminal Procedure Act, 51 of 1977
, which admissions are contained in
exhibit “F” and which include the following:
“
4.
EXHIBITS
AND DNA REPORT:
4.1
That the bio swabs marked “BIO A1”, “BIO A3”,
“BIO A4”
and “BIO A7”, referred to in
paragraph 4 of exhibit “D”, were taken from the house of
the accused.
These bio swabs are reflected on photos 39, 44, 45
and 52 respectively.
4.2
That the vertebra and tooth as mentioned in paragraph 4 of exhibit
“D”
was found on the dumping site.
4.3
That the abovementioned exhibits as well as exhibit 1 and 2 were
correctly sealed
and sent.
5.
The correctness and the conclusions of the report compiled by Warrant
Officer A Massyn are not in dispute and it is handed in as exhibit
H.”
[19]
During his evidence the appellant testified that his contact with the
deceased and M.S. occurred on Friday, 29
April 2011, and not on
Saturday, 30 April 2011. According to his evidence he sent the
deceased to buy bread, whilst he sent
M.S to her grandmother’s
house to get him some food. The deceased returned with the
bread, entered the house and put
the bread on the table. She
then asked his permission to pick oranges from a tree on his
premises, to which he agreed.
She then left and he closed the
door. According to the appellant that was the last time he saw
her. The only room she
had been in was the sitting room.
He reiterated that the gate to his premises was not locked when M.S.
returned and that
it was only held together with some wire.
After M.S. informed him that the food at her grandmother’s has
not yet been
cooked, she then asked where the deceased was, to which
the appellant replied that she had left. M.S. then also left his
premises.
The
appellant denied that he gave Sergeant Nkomonye and her colleagues
permission to search the house. It should however be
mentioned
that in his evidence in chief the appellant initially testified that
he opened the door for Constable Nkomonye so that
she could enter the
sitting room, where after as a result of Mr Nel posing a further
question to the appellant, he changed this
version and testified that
he was lying in his bed watching television when the police entered
the house.
Regarding
the involvement of Captain Mojaki, the appellant testified that when
he was taken from the holding cells in the presence
of Captain
Mojaki, Captain Mojaki grabbed him at the back of his neck and pushed
him against the wall. He also alleged that
Captain Mojaki
threatened to choke him if he did not tell the truth. The
appellant denied having made the confession to Captain
Mojaki. The
appellant explained that when he was questioned by Captain Mojaki, he
was under the impression that Captain Mojaki
was referring to the
fire which he and his colleague lit at the stadium to keep themselves
warm when they were at work. That was,
according to the appellant,
the only fire he told Captain Mojaki about and which he offered to
point out.
[20]
I will now deal with the respective specific grounds of appeal:
1.
THE
CREDIBILITY OF CAPTAIN MOYAKI:
[21]
The Court
a quo
made the following observations and findings
in her judgment regarding his evidence, also in comparison to that of
the appellant:
“
[16]
Mr Nel, on behalf of the accused,
specifically placed on record that the accused does not deny that the
statement he made to Captain
Moyaki was made freely and voluntarily,
without any undue influence and while he was in his sound and sober
senses. The only
dispute was with regard to the content of the
statement. In view of the fact that only credibility was in
issue and not the
voluntariness of the statement, Mr Nel advised that
a trial-within-a-trial was not necessary to determine the
admissibility of
the statement. The requirements of
Section 217
of the
Criminal Procedure Act regarding
confessions have therefore
been met. Captain Moyaki testified that he met the accused for
the first time while he was in
custody after his arrest, and after
the accused was warned of his constitutional rights, he elected to
make the statement.
It was never put to the Captain that he at
any stage assaulted or placed the accused under any duress to make
the statement.
The accused rose only during his evidence in
chief that the Captain had assaulted and threatened him, which was in
direct contradiction
to the admission made on his behalf in respect
of the voluntariness of the statement.
[17]
Captain Moyaki came across as a
reliable witness who had no interest in, and nothing to gain by
fabricating his evidence.
If one contrasts this with what the
accused in his evidence in chief alleges he said to the Captain as
well as what was put to
the Captain in this regard in
cross-examination, it is difficult not to conclude that the accused
is in fact the person that is
fabricating his version. I
therefore find no reason to disbelieve the evidence of Captain Moyaki
and accordingly accept his
evidence.”
[22]
I cannot fault the aforesaid findings of the Court
a quo
.
Captain Moyaki had no previous knowledge of the appellant or of the
deceased. In fact, at the time when Captain Moyaki
interviewed
the appellant, the police was only investigating the disappearance of
the deceased, not having had any knowledge that
she has in fact been
murdered. The contents of the confession were therefore the
only means by which Captain Moyaki could
have known which scenes to
visit and investigate. The said information could only have been
obtained from the appellant.
Further corroboration for the
version of Captain Moyaki is also to be found in the relevant items
and the blood that were found
at the respective scenes, which items
fit in with the explanation the appellant gave to Captain Moyaki
regarding the murder of
the deceased and the manner in which the body
of the deceased had been mutilated.
[23]
There is consequently no basis upon which we can interfere with the
credibility finding by the Court
a quo
regarding Captain
Moyaki.
2.
THE
SEARCH OF APPELLANT’S HOUSE AND THE SEIZURE OF ITEMS:
[24]
On close scrutiny of the record, together with the arguments advanced
by Mr Nel during the hearing of the appeal,
it appears that this
ground of appeal comprises three elements, namely:
1.
The
manner in which Constable Nkomonye gained entry to the house of the
appellant.
2.
The
question whether the appellant granted permission to the police to
search his house.
3.
The
question regarding the reasonable believe of the police that a search
warrant would have been obtained if applied for, but that
the delay
in such obtaining would have defeated the object of the search.
I will
now deal with each of the aforesaid elements.
A:
Entry to the appellant`s house:
[25]
In his heads of argument and during the hearing of the appeal Mr Nel
submitted that the kicking open of the door
of the house of the
appellant by Constable Nkomonye, resulting in the alleged permission
by the appellant that his house be searched,
constituted a flagrant
breach of the appellant’s constitutional right to privacy,
which should have led to the exclusion
of all evidence and items
obtained as a consequence of such alleged permission.
[26]
It was not canvassed with Constable Nkomonye that she in any manner
infringed upon the appellant’s right
to privacy. It was
only during the evidence of Warrant Officer Orren, who was the last
state witness to testify, that the
appellant for the first time
instructed Mr Nel that he did not give the police permission to enter
(and search) his house.
In this regard Mr Nel put the following
to Warrant Officer Orren (record, p. 130, lines 1 – 7):
“
Lastly,
I put it to you that upon my instructions that accused never gave
anybody permission to enter or search this premises of
his, the entry
is unlawful which right of privacy couldn`t be limited by anything
for instance like urgency and therefore any process
that flows from
that unlawful entry and the search and seizure is unlawful and
unconstitutional.”
[27]
Mr Nel at that stage also placed it on record that he only received
the aforesaid instructions that morning. Despite
his aforesaid
instructions, Mr Nel, however, indicated and submitted in response to
questions posed to him by the Court
a quo
, that it was not
necessary for a trial-within- a- trial to establish the
constitutionality of the manner in which the evidence
were obtained.
The Court
a quo
accepted his submission in this regard.
[28]
The aforesaid issue pertaining to the manner in which Constable
Nkomonye gained entry to the house and the possible
effect thereof on
the subsequent events, was not only raised at a very late stage of
the trial, it was also not properly canvassed
in the Court
a quo
.
However, it seems that on the state’s own version it should be
accepted that Constable Nkomonye did in fact kick open the
door.
[29]
Although Constable Nkomonye testified that they searched the house
after entering it, it is also evident from her
evidence that they
arrested the appellant despite having found nothing during the
search. Because the said issue was not at all
canvassed with this
witness, no further clarity was obtained regarding this aspect.
However, considering that they arrested the
appellant without having
found any evidence of the commission of the crime on the scene,
the only reasonable inference in
my view is that Constable Nkomonye
and Warrant Officer Uys in fact went to the appellant`s house to
arrest him.
[30]
Section 48 of the Criminal Procedure Act, 51 of 1977 (the “Act”),
determines as follows regarding the
breaking open of premises for
purpose of arrest:
“
Any
person who may lawfully arrest another in respect of any offence and
who knows or reasonably suspects such other person to be
on any
premises, may, if he first audibly demands entry into such premises
and notifies the purpose for which he seeks entry and
fails to gain
entry, break open, enter and search such premises for the purpose of
affecting the arrest.”
[31]
Considering the evidence of Constable Nkomonye regarding her request
that the appellant should open the door of
his house and having
advised him that they are members of the police, I am of the view
that in terms of Section 48 of the Act,
she was under the
circumstances entitled to have kicked the door open without having
infringed in an unacceptable manner upon the
appellant`s right to
privacy.
[32]
In addition to the aforesaid, it should be kept in mind that the
search which resulted in the seizure of the relevant
items which were
presented in evidence in Court, did not occur during the event when
Constable Nkomonye kicked open the door.
The events pertaining
to the kicking of the door is therefore in my view in any event so
far removed from the subsequent search
that resulted in the seizure
of the relevant items as evidence that it cannot be regarded to have
had an impact on the appellant’s
right to a fair trial or
otherwise to have been detrimental to the administration of justice.
B:
Permission to search and seize – Section 22(a) of the
Act:
[33]
Section 22 (a) of the Act determines,
inter alia
, as follows:
“
22
A
police official may without a search warrant search any person or
container or premises for the purpose of seizing any article
referred
to in section 20-
(a)
if
the person concerned consents to the search for and the seizure of
the article in question....”
[34]
At the onset of addressing this issue, I need to mention that in his
argument during the appeal Mr Nel submitted
that the forceful manner
in which Constable Nkomonye gained entry to the appellant`s house
actually resulted in or was the cause
of the appellant giving his
permission for the search and seizure. I however did not understand
the appellant’s case in the
Court
a quo
to have been
that he gave permission for the house to be searched as a result of
the kicking open of the door. To the contrary,
his eventual
instructions were to the effect that he gave no such permission. The
aforesaid contention of Mr Nel can therefore
not hold water.
[35]
The question whether the appellant gave permission to Constable
Nkomonye and Warrant Officer Uys to search his
house is a mere
factual issue which has to be determined on the evidence as a whole
and based on the credibility of the respective
witnesses, including
the appellant. The Court
a quo
in her judgment referred
to the fact that the alleged lack of permission by the appellant was
only raised at a late stage of the
trial during cross-examination of
Warrant Officer Orren. She however did not make a specific
factual finding as to whether
the State had proved such permission or
not. In the absence of the Court
a quo
having made a factual
finding regarding the permission aspect, we are at liberty to do so
as Court of Appeal.
[36]
The appellant did not dispute Constable Nkomonye’s version that
he gave her and Warrant Officer Uys permission
to search his house.
The appellant’s denial of such permission was only raised
almost at the end of the State’s case
during the cross
examination of Warrant Officer Orren when Mr Nel specifically
indicated that it was the first time he received
such instructions.
This issue was not canvassed with Sergeant Smit either. I therefore
have to agree with the submission of Me
Ferreira that it is evident
that the appellant changed his version at that late stage of the
trial. Contrary thereto, there is
confirmation of the version of
Constable Nkomonye in that Warrant Officer Orren testified that he
had been informed on that same
day on which the appellant was
arrested that the appellant had given Constable Nkomonye and Warrant
Officer Uys such permission.
[37]
I am consequently satisfied that the State proved beyond reasonable
doubt that the appellant in fact gave Constable Nkomonye
and Warrant
Officer Uys permission to search the house.
[38]
With regard to the search of the appellant’s house and premises
and the seizure of items during such search
by Warrant Officer Orren
and Sergeant Smit, I deem it necessary to go a step back and refer to
the evidence of Captain Moyaki.
Initially the appellant was
willing to point out the places where the murder and the mutilation
of the body of the deceased took
place, which included the house of
the appellant. When the appellant changed his mind regarding
this pointing out of the
respective scenes because of his
fear for the community, he told Captain Moyaki the following (record,
p.19, lines
1 – 2):
“
Then he
refused and said to me I can go to those places where he explained to
me what happened, I will find those things.”
This
was after the appellant’s constitutional rights had been fully
explained to him.
[39]
Therefore I am of the opinion that, in addition to the permission the
appellant gave Constable Nkomonye that the
police may search his
house, his “directions” and “instructions” to
Captain Moyaki constituted implied
consent and permission by the
appellant that his house may be searched by the police.
[40]
The seizure of the evidence found at the house of the appellant and
the taking of the photographs were handled
by members of a forensic
team who was called to the scene by Captain Moyaki. This
included Sergeant Smit, who was also accompanied
by the investigating
officer, Warrant Officer Orren. Although Mr Nel is correct in
his submission that Sergeant Smit did
not give any evidence regarding
permission of the appellant to search his house, nor was she aware of
any warrant, the fact is
that Warrant Officer Orren, who accompanied
Sergeant Smit, gave very specific evidence regarding such permission
and also regarding
the situation pertaining to a warrant (the last
mentioned issue will be dealt with hereunder). I deem it
necessary to refer
to specific parts of his evidence at it appears on
pages 124, line 7, to 125, line 17, of the record:
“
And it is
common cause that you did not have a warrant, a seizure warrant, is
that correct? ….. Dit is korrek.
And according to
you what was the reason for that, first of all? ….. Daar
was verskeie redes, eerstens het die beskuldigde
vir Adjudant
Uys-hulle toestemming gegee om die huis te visenteer.
…
..
You said
‘Uys-hulle’ so I am going to clarify that, Uys and who?
…… Konstabel Nkomonye.
…
.
And you as an
investigation officer, even suppose, but it is apparently not the
case, even although a person in these circumstances
did not give you
any permission to enter his premises, what would you do? ….Ek
sal nog steeds voortgaan.
And for what reason
would that be? ….Indien ek sou aansoek doen vir ‘n
visenteringslasbrief, sou dit in my opinie
goedgekeur gewees het.
…
.
Just a minute,
sorry, I am just trying to record this yes? ….Verder was die
tydsduur ook ‘n faktor gewees.
…
.
What about the
time, what would happen? ….Bewysstukke kon vernietig
gewees het of verlore geraak het in die tydperk
wat ons ……”
And
then in cross examination on page 128, line 14, to page 129, line 14:
“
And there
was no person living there at that stage, so why couldn’t you
wait until you get a warrant before you enter into
this house?
…Soos ek reeds getuig het die…. dit is nie net slegs
die huis wat getref was nie, maar ook die
erf. Dit was reeds
gedoen gewees sonder ‘n visenteringslasbrief.
…
.
Let us make sure,
under what understanding did you enter this premises without a
warrant, was it because you were under the impression
that permission
was obtained from the accused to another police officer or was it
because it was on a public holiday and you were
afraid that there
might be tampered with the evidence? ….. Ek sal sê
beide die redes, albei die redes.
We already dealt
with the aspect of urgency, let us look at the aspect of permission.
What was the information given to you
regarding permission to enter
904? ….Die lede het my meegedeel dat hulle toestemming
gehad het om die perseel te deursoek.
Sorry who informed
you? ….Beide Adjudant Uys en Konstabel Nkomonye.
Let me just make
sure that I understand you correctly, did Uys and Nkomonye inform you
that they had permission to enter the premises?
….Te
deursoek.”
[41]
Based on the totality of the evidence, I am satisfied that the State
proved beyond reasonable doubt that the appellant
also gave Captain
Moyaki permission to search his house and to seize all evidence
pertaining to the murder of the deceased
which the police could
find. This permission, in addition to the permission already
granted to Constable Nkomonye, also covered
the subsequent search for
and seizure of items of Sergeant Smit and Warrant Officer Orren and
other members of the police at the
scene.
C:
The absence of a search warrant – Section 22(b) of
the Act:
[42]
In terms of Section 22(b) of the Act a police official may without a
search warrant search any person or container
or premises for the
purpose of seizing any article referred to in section 20 in the
following circumstances:
(b)
if
he on reasonable grounds believes-
(i)
that
a search warrant will be issued to him under paragraph (a) of section
21(1) if he applies for such warrant; and
(ii)
that
the delay in obtaining such warrant would defeat the object of the
search.”
[4
3]
With reference to the search of the appellant’s house and
premises and the seizure of items during such
search by Warrant
Officer Orren and Sergeant Smit, Mr Nel submitted that they ignored
the appellant’s constitutional rights.
He contended that
the search and the obtaining of evidence from the house premises of
the appellant without a search warrant violated
the appellant’s
right to privacy as well as his right to a fair trial and that such
evidence should therefore have been
excluded.
[44]
Although Mr Nel is correct in his submission that Sergeant Smit
conceded that she was not aware of any search warrant,
I have already
in paragraph 40, above, referred to the evidence of Warrant Officer
Orren,
who accompanied Sergeant Smit
, in which he specifically
testified regarding his believe pertaining to the obtaining of a
search warrant under the circumstances.
[45]
The Court
a quo
made the following finding with reference to
Section 22(b) of the Act in favour of the State (record, p. 197, line
19, - p. 198,
line 1):
“
Given the
circumstances of the matter and the information that came to Warrant
Officer Orren’s knowledge at that time, I am
satisfied that he
would have obtained a search warrant if he was able to apply for one
on that day, and that he was justified in
entertaining the
apprehension that evidence would have been lost or destroyed if he
did not act swiftly in the matter.”
[46]
There is no basis upon which the aforesaid finding can be faulted.
[47]
In
S v GUMEDE AND OTHERS
1998 (5) BCLR 530
(D) it was
held that the provisions of Section 22(b) and 23(1) which authorise
searches are, with reference to the Interim Constitution,
not
unconstitutional. To the extent that the provisions limit the
right to privacy, such limitation is reasonable and justifiable
in
accordance with the limitations clause. The Constitution of the
Republic of South Africa Act, 108 of 1996, contains a
similar
limitation clause in Section 36 and therefore I am of the view that
the aforesaid judgment is
mutatis mutandis
applicable to the
current constitution.
[48]
In the premises I find that in addition to my finding in paragraph 41
above pertaining to the permission obtained
from the appellant, the
search of the appellant’s house and the seizure of items and
evidence in any event fell within the
ambit of Section 22(b) of the
Act and therefore the evidence was not unconstitutionally obtained.
4.
THE
FINDING THAT THE APPELLANT LIVED ALONE ON THE PREMISES:
[49]
The Court
a quo
made the following finding regarding this
issue in her judgment (record, p. 198, lines 18 – 24):
“
The
accused was unable to satisfactorily explain the presence of the
deceased’s DNA in his house and in the outside toilet.
While it may be true that other people stayed with him from time to
time, all the evidence points to his staying alone at that
house at
that time, and there is no evidence to suggest that any other person
had access to his house during the period 30 April
2011 to 2 May
2011.”
[50]
Captain Moyaki testified that from the investigation it was clear
that the appellant resided alone.
Constable Nkomonye also
confirmed that the appellant was staying alone at the time.
According to her evidence, she pertinently
asked him with whom he was
residing, to which he responded that he was staying alone. In
response to certain questions posed
to her by the Court
a quo
,
she furthermore testified that she knew the appellant before the
incident as the appellant was residing at house number 904 and
she
was at the time residing at house number 905. She testified
that although one Pule previously used to reside there, he
and the
appellant had a fight and he had left the house some time before the
day of the incident.
[51]
During his evidence the appellant initially testified that he was not
staying alone, that his house had two bedrooms,
one of which was his
brother’s (Tebogo). He also testified that both his
brother and his uncle had keys to the house.
However, in her evidence
M.S. was adamant that the appellant stayed alone at his house and she
denied that Tebogo stayed with the
appellant whenever he was in B[…].
Eventually and in response to questions the Court
a quo
posed
to him, the appellant confirmed that during the period of 29 April
2011 to 2 May 2011 nobody else stayed in his house except
himself.
[52]
The aforesaid finding of the of the Court
a quo
in this regard
is therefore in accordance with the evidence judged in its totality
and consequently this ground of appeal can also
not succeed.
CONCLUSION:
[53]
Considering the aforesaid findings regarding the grounds of appeal,
there is no basis upon which we can or should
interfere with any of
the findings of the Court
a quo.
We furthermore agree with the
Court
a quo
that the State has proved the guilt of the accused
on the charge of murder beyond reasonable doubt.
[54]
The appeal against the conviction of the appellant is consequently
dismissed.
_____________
C.
VAN ZYL, J
I
concur.
______________
S.
EBRAHIM, J
I
concur.
________________
P.U.
FISCHER, AJ
On
behalf of the Appellant: Adv P.W. Nel
On
instructions of:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the Respondent: Adv A.M. Ferreira
On
Instructions of:
Office
of the Director: Public
Prosecutions
BLOEMFONTEIN