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[2012] ZAGPPHC 132
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Lusenga and Others v S (A240/11) [2012] ZAGPPHC 132 (28 June 2012)
NOT
REPORTABLE
IN
THE NORTH-GAUTENG-HIGH COURT – PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case
number: A240/11
DATE:28/06/2012
In
the matter between:
ABRAM
JAMLUT
LUSENGA
,...............................................................................
1st
APPELLANT
TSHILIDZI
RIKHOTSO
….......................................................................................
2ND
APPELLANT
CLEMENT
MANGOKGOTHO
MALATJI
..............................................................
3rd
APPELLANT
WILLIAM
LUCKY MASWANGANYI
…..................................................................
4TH
APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
RAULINGAJ,
INTRODUCTION
[1]
The Appellants were initially indicted with other accused on the
following
charges:
(i)
Count 1: Robbery with aggravating circumstances.
(ii)
Count 2: Kidnapping.
(iii)
Count 3: Attempted murder.
These
offences were allegedly committed on the 9th August 2003 at
Soshanguve.
(iv.)
Count 4 : Attempted Robbery with aggravating
circumstances,
(v.) Count 5 : Murder, (vi.) Count 6 : Attempted Murder, (vii.) Count
7: Unlawful Possession of Firearms, (viii.)
Count 8: Unlawful
Possession of Ammunition, (ix.) Count 9 : Obstructing the ends of
justice
(Only
in respect of 1st Appellant)
These
offences were allegedly committed on the 21st August 2003 at
Modimolle.
[2]
The Appellants were arraigned for trial at Modimolle. The charges
against two other accused were subsequently withdrawn.
[3]
On the 15th February 2007, the Appellants were convicted on the
following charges:
1st
Appellant:
1.
Count 4: Attempted Robbery with aggravating circumstances.
2.
Count 5: Murder.
3.
Count 6: Attempted Murder.
2nd
Appellant:
1.
Count 1: Robbery with aggravating circumstances.
2.
Count 2: Kidnapping.
3.
Count 3: Attempted Murder.
4.
Count4: Attempted robbery with aggravating circumstances
5.
Count 5: Murder
6.
Count 6: Attempted Murder. 3rd Appellant:
1.
Count 4: Attempted Robbery with aggravating circumstances.
2.
Count 5: Murder.
3.
Count 6: Attempted Murder.
4th
Appellant:
1.
Count 1: Robbery with aggravating circumstances
2.
Count 2: Kidnapping.
3.
Count 3: Attempted Murder.
4.
Count 4: Attempted Robbery with aggravating circumstances.
5.
Count 5: Murder.
6.
Count 6: Attempted Murder.
All
the Appellants were legally represented during their trial. The court
a quo granted them leave to appeal in respect of conviction
only.
[4]
It does not appear from the indictment and the record of proceedings
that the Appellants were informed of the implications of
the relevant
sections of Act 105 of 1997 regarding minimum sentences. However this
does not turn on this case since the appeal
was granted on conviction
only. It appears from the summary of substantial facts that the state
alleges common purpose. Another
glaring omission is that the
indictment does not reflect Counts 1-3 i.e. the offences alleged to
have been committed at Soshanguve.
The charges as reflected in the
indictment don't mirror the sequence followed during the trial and
what was recorded by the court
a quo on conviction and sentence. To
say the least it is very confusing.
[5]
When the trial commenced all the Appellants pleaded not guilty. They
elected to remain silent. A number of exhibits were admitted
as »
evidence by consent between the parties. The contents of the said
exhibits were also admitted as being correct. Amongst
these exhibits
is a confession made by the 2nd Appellant which is marked "F"
with annexure "Fl". This confession
was challenged by
counsel on behalf of the 2nd Appellant.
[6]
The evidence of the State is that on the evening of 9th August 2003
Xolani Kenneth Shongwe while in the company of one Thabo
was
kidnapped and robbed of a motor vehicle with registration number
HXZ124GP - a single cab Nissan bakkie. After he was pushed
out of the
vehicle while he was laying on the ground he was shot at once.
However he was not struck by any bullet. Kenneth implicated
the 4th ^
Appellant as the person who pushed him out of the vehicle. It would
transpire later that the 4th Appellant never appeared
at an
identification parade. It also transpired that Thabo could not point
out the 2nd Appellant at the identification parade since
he pointed
somebody else. The motor vehicle in question would on the 21 August
2003 be placed on the scene of the crime with the
1st Appellant as
the driver and the 2nd Appellant as a passenger.
[7]
A number of witnesses testified for the State regarding the incident
of the 21st August 2003 at Modimolle. Phillip Otto and
William
Thulare were in the police vehicle together when they received a
report that there was a suspicious vehicle in the vicinity.
They
followed the said vehicle for about 2 kilometres until it came to a
stop. The driver i.e. the 1st Appellant alighted and gave
them the
name Abel Maphanga whereas his real name is Abram Lusenga. The 2nd
Appellant who was a passenger in the said vehicle was
found in
possession of more that 20 9mm rounds of ammunition. The motor
vehicle was circulated and found to have been stolen. The
1st and 2nd
Appellants were then arrested. They were taken to AE Supermarket
where an attempted robbery had just been committed.
However they
denied any involvement in the said robbery. They were then taken to
the Police Station where they were kept in custody.
[8]
On the 25th August 2003 after an interview with Captain Schutte the
2nd Appellant made a confession to Magistrate Rametse. This
confession was contested by the 2nd Appellant, but found admissible
by the court a quo, after a trial within a trial was conducted.
There
is also -evidence that the 2nd Appellant was once employed at AE
Supermarket as security officer. This is admitted by the
2nd
Appellant.
[9]
Evidence was led that one of the state witnesses, Mr. De Beer, was
shot at by two unknown assailants when they ran through his
premises.
The said assailants could not be identified nor were they found. Mr.
Pretorius discovered a 9mm pistol at the graveyard
not very far from
A E Supermarket. The said firearm could not be linked to any of the
Appellants. Mr. Quintin Otto testified that
he was working for the
deceased, Jose de Sousa, at the AE Supermarket. On the 21st August in
2003, there arrived robbers at the
shop. They ordered him to lie on
the floor, which he did. Something fell and the would be robbers ran
^ out of the shop. Mr. David
Martinho is the general manager of the
shop. On the evening of the incident he was with the deceased in his
office. A black man
entered the office and pointed a gun at them. He
heard a noise and realised that a safe had fallen. At the time they
had already
put the money into the safe. He assumed that the deceased
had pushed the safe. He pressed the panic button to alert the
security.
He knows the 2nd Appellant very well since he used to work
at the Supermarket.
Inspector
Steyn testified on how the fingerprints were lifted and how the
Appellants are linked to the said fingerprints. In particular
the
said fingerprints link 1st, 3rd and 4th Appellants.
[10]
The 1st Appellant testified that he was indeed the driver of the
Nissan bakkie on the 21st August 2003. He was driving to Morea.
He
picked up ~ the 2nd Appellant on the way and they drove into
Modimolle. He denies any involvement in the crimes. He denies that
he
told the police that he dropped two persons next to AE Supermarket.
He was seeing the 2nd Appellant for the first time. He gave
the
police a wrong name in order to protect himself. The motor vehicle
was loaned to him by one Lloyd. The2nd Appellant testified
that he
holds a licence for a firearm and rounds of ammunition which were
found in his possession. He got a lift from the 2nd Appellant
at
Carousel at about 18h00. He was going to collect R300 from somebody
at Nylstroom. He knows that the AE Supermarket makes a lot
of money
on a daily basis. He admits that ammunition and a cell phone were
found in his possession on the 21st August 2003. He
used to work at
AE Supermarket.
The
3rd and 4th Appellants deny any involvement in the crimes. They plead
an alibi. They say the reason why their fingerprints were
lifted from
the bakkie is because 1st Appellant sells products which are used to
polish dashboards and that the 4th Appellant worked
at a car-wash.
Although they cannot give exact times and dates it is possible that
at one time or another they could have had contact
with the vehicle.
[11]
The high water mark of this case is centred around a confession made
by the 2nd Appellant to the magistrate on the 25th August
2003. The
statutory requirements governing the admissibility of confessions are
governed by Section 217 of the CPA 51 of 1977.
This section must be
read with Section 219 of the Act which provides that no confession
made by any person shall be admissible
as evidence against another
person. While the 2nd Appellant admits that all the other
requirements were met, he disputes that it
was made "freely and
voluntarily" and as a consequence he was unduly influenced. He
alleges that he was assaulted by
Captain Schutte who told him what to
say and what he told the magistrate is what Schutte told him. On the
confession proforma form
marked exhibit Fl -para 6 on page 353 of the
record, the following is recorded by the magistrate: "Die
polisie het gese ek
moet vir die Landros kom vertel hoe het ons
gewerk om roof te trek". Further at paragraph 7(a) and (b) the
following is recorded:
"(a.)
Het u enige beserings of kneusing van welke aard ookal en miskien dit
vertonbaar is, wys ditaan my? Answer: "Ja,
op my kop. Pyne op my
skouers en pots."
(b.)
Vertel aan my hoe u aan die beserings gekom het?
Answer:
"Tydens die arrestasie was ek deur die polisie aangerand. Dit is
die enigste besering." (There was a fresh wound
of about 3-4 cm
long on the back of his head)
This
is the only discrepancy one could pick up from the confession.
Otherwise counsel for the defence conceded that the 2nd Appellant
made the statement to the magistrate and that the contents of the
statement are a true reflection of what transpired on the 25th
August
2003.
[12]
A trial-within-a-trial was then held in which Magistrate Rametse and
Captain Schutte testified. The Magistrate confirmed the
statement
which was deposed to him by the 2nd Appellant. Captain Schutte denied
ever assaulting the 2nd Appellant. He also refuted
the fact that the
2nd Appellant could have been assaulted in his presence. He denied
that he told the 2nd Appellant what to say
to the magistrate. He
never told the 2nd Appellant to mention the names of those with whom
he attempted to rob the shop. The 2nd
Appellant testified that on the
22nd August 2003 he was taken from the police cells to Captain
Schutte's office where he was made
to lie on his stomach and a tube
was placed around his face blocking his mouth and nose which
suffocated him. He was told that
if he does not tell the magistrate
the truth - the same procedure would be repeated on a daily basis.
According to him he was influenced
by Captain Schutte what to say.
[13]
The evidence indicates that the 2nd Appellant contradicted himself.
When he testified in the tri a I - wi th i n-a-tri a I
he said that
everything he told the magistrate was properly recorded, but in his
evidence in chief he denied some of the incidents.
In the first place
if Captain Schutte had told him to tell it all he could have
mentioned the names of his collaborators. He could
have told the
magistrate the name of the person who pulled the trigger. Further
Captain Schutte couldn't have known that AE Supermarket
is also known
as Banthu. He could not have known that one Chris was given
information about money at the supermarket, although
he says the name
Chris was given to him by Captain Schutte. Moreover the name "Chris"
does not appear in the list of
the culprits and the witnesses.
[14]
When evaluating the evidence of a tri a I-with i n -a-tri a i, the
court is entitled to look at the evidence which was subsequently
adduced. As already stated, in his evidence in chief the 2nd
Appellant rejected some of the contents recorded by the magistrate
in
the confession, whereas during the trial-within-a-trial the contents
were admitted as being a true reflection of what was said.
It must be
remembered that the 2nd Appellant said that he was not influenced in
any other way although he had earlier said that
the confession was
not made freely and voluntarily. If anything at all, the 2nd
Appellant could have been assaulted by Otto, Thulane
and Nel before
he came into contact with Captain Schutte.
[15]
A view has been expressed that the requirements of "freely and
voluntarily" and "without undue influence"
were
distinct each of which had to be complied with as a prerequisite to
admissibility - S v Lebone 1965(2) SA 837 (A) at 844.
It can be said
that there is _ certainly much force in the argument that the
artificial interpretation of "volutariness"
at common law
should be replaced by a more liberal construction so as to offer
accused persons more protection against the reception
of unduly
influential statements. That construction is to be found in the words
of Cameron J (as he then was) in S v Marx &
another 1996(2) SACR
140(W) AT 144(a-c) in that what every criminal court now has to
determine is "whether the administration
of any evidence,
including statements an accused has made to a police officer, will
unfairly infringe his or her right to a fair
trial." under the
Constitution. However, the requirements in Section 219A of CPA, that
an admission be Voluntarily made' by
the accused before it may be
admissible against him at criminal proceedings, was interpreted in S
v Yolelo
1981 (1) SA 1002
(A) at 1009 that it was a statutory '
provision which is a mere embodiment of the common law rule
formulated in R v Barlin
1926 AD 459
at 463. With respect this
interpretation may not comply with the requirements of the
Constitution.
[16]
I raise this argument because the fact that the 2nd Appellant was
assaulted by the police, which fact is reflected in his conversation
before the magistrate, was not canvassed by the court a quo. This
assertion is marred by the fact that the defence itself made
a number
of concessions on behalf of the 2nd Appellant. To exacerbate matters,
the 2nd Appellant contradicted himself in his testimony.
Had it not
been for the contradictions in his testimony I do not think the
confession -could have passed the Constitutional muster.
[17]
Although the 2nd Appellant has mentioned that there are faceless
people who assisted him in committing the crimes, his confession
cannot be imputed on any other person than himself. He can be linked
to the commission of the crimes once the confession is admitted
into
evidence. He is also linked to the commission of the crimes in that
he was a passenger in the Nissan bakkie which was used
in the
commission of the crimes.
[18]
In my view the conviction of the Appellants based on the evidence of
the identification as adduced by Kenneth Shongwe and Thabo
Matloga
cannot stand. Their evidence is unreliable and not credible for the *
following reasons: It was in the night and dark.
The lighting and
visibility were not good. Both of them didn't have prior knowledge of
the Appellants. They didn't have the opportunity
to observe both as
to time and situation. They could not give a description of the
faces, voices and dress of each of the Appellants.
The two Appellants
i.e. 2+4 were not pointed at the identification parade. In fact it
was conceded by the State that the 4th Appellant
didn't appear at the
parade. It is trite that identification is circumstantial evidence.
For circumstantial evidence and inference
to be drawn there must be
objective facts from which to infer the other facts which the court
seeks to establish - SV Cooper and
others
1976 (2) SA 875(7)
OF 888H.
In my view, the court a quo misdirected itself materially when it
concluded that the , 2nd and 4th Appellants were positively
identified by Kenneth and Thabo. That conclusion cannot be sustained.
[19]
On the other hand the 2nd Appellant is linked to the commission of
the crimes in counts 4 and 5 through his confession. Their
evidence
that the 1st and 4th Appellants didn't drop anybody at the AE
Supermarket must be rejected. The evidence of the State
that the 1st
and 2nd Appellants said they dropped a "woman and a man" at
the shop must be accepted. The only inference
that can be drawn is
that they dropped some of the perpetrators. That evidence therefore
corroborates the 2nd Appellant's confession.
In as far as the 1st
Appellant is concerned, he was in the company of the 2nd Appellant
and he was the driver of the motor vehicle.
The said motor vehicle
dropped certain people at the shop and later there was an attempted
robbery and the deceased was killed.
[20]
I am not convinced that the 1st and 2nd Appellants can be convicted
on Count 6. The 2nd Appellant's confession cannot be used
to
implicate other people. There is no evidence that establishes a link
between the 1st and 2nd Appellants and the said two people
who shot
at De Beer. If one were to draw such an inference it may be too
remote. One must be mindful of the fact that there are
two other
accused persons whose charges were withdrawn. Further if one were to
apply the doctrine of common purpose, it will be
in futile because
the 1st and 2nd Appellants couldn't have foreseen that somebody who
was not in the shop could have been shot
at. The 1st and 2nd
Appellants cannot be held responsible for the killing of De Beer. I
must immediately say that the -same logic
applies to the 3rd and 4th
Appellants.
[21]
The explanation of 3rd and 4th Appellants why their fingerprints were
found on the Nissan bakkie within 72 hours cannot be
accepted. The
court a quo was correct in holding that they are linked to the
conviction of the crimes in Counts 4 and 5. However,
the 4th
Appellant's fingerprints cannot be used to link him to the offences
committed on the 9th August 2003. The 4th Appellant
as already
indicated above must be acquitted on counts 1-3. There is no evidence
of recent possession on these counts.
[22]
On a proper evaluation of the evidence it cannot be said that the
court a quo misdirected itself when it ruled that the 2nd
Appellant's
confession is admissible. Further on probabilities it can be accepted
that all the Appellants were involved in the
commission of offences
in . counts' 4 and 5.
[23]
Having said that I am of the opinion that the 1st Appellant's appeal
on Count 6 should be upheld. His appeal on Counts 4 and
5 must be
dismissed.
The
2nd Appellant's appeal on Counts 1, 2, 3 and 6 should be upheld. His
appeal on Counts 4 and 5 must be dismissed.
The
3rd Appellant's appeal on Count 6 should be upheld. His appeal on
Counts 4 and 5 must be dismissed.
The
4th Appellant's appeal on Counts 1, 2, 3 and 4 should be upheld. His
appeal on Count 5 is dismissed.
Since
the appeal is only on conviction no order is necessary with regard to
the sentence.
[24]
In the circumstances I make the following order:
(a)
Appeal in respect of the 1st and 3rd Appellants is upheld on count
6.Their appeal on counts 4 and 5 is dismissed.
(b)
Appeal in respect of the 2nd and 4th Appellants is upheld on counts
1, 2,3 and 6. Their appeal on counts 4 and 5 is dismissed.
TJ
RAULINGA
JUDGE
OF THE HIGH COURT NORTH GAUTENG HIGH COURT
I
agree
RG
TOLMAY
JUDGE
OF THE HIGH COURT NORTH GAUTENG HIGH COURT
I
agree
VAJ
BAM
ACTING
JUDGE OF THE HIGH COURT NORTH GAUTENG HIGH COURT