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[2012] ZAKZPHC 52
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Nene v S (AR 139/11) [2012] ZAKZPHC 52 (21 August 2012)
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL, PIETERMARITZBURG
CASE No : AR 139/11
In the appeal of:
CELUMUSA KHEHLA NENE
…...........................................................
Appellant
and
THE STATE
…................................................................................
Respondent
JUDGMENT
VAN ZÿL, J
.
:
The appellant appeals, with leave of the trial court (Murugasen, J.)
against his convictions only. These comprise malicious injury
to
property on counts 3, 5 and 7, theft in respect of counts 4 and 8
and attempted theft in respect of count 6. In addition the
appellant
was convicted of attempted murder in respect of counts 9, 11 and 14.
He was sentenced to imprisonment for ten(10) years
on each of the
counts of malicious injury to property, twelve(12) years on each of
the attempted murder counts, five(5) on each
of the theft counts and
to three(3) years on the attempted theft count. However, it was
directed that the sentences imposed upon
all these counts run
concurrently with each other, so that the effective term of
imprisonment to be served is one of twelve(12)
years.
These convictions at issue in this appeal all arise out of a series
of events which took place during the night of 15 July 2008,
when
three(3) automatic teller machines (ATM’s), all situated at
Webber’s Centre, Hammarsdale and respectively operated
by
Standard Bank, Nedbank and ABSA, were attacked and damaged with
explosives by an armed gang. The security guards on duty at
the
centre were held up at gunpoint and monies were taken from two of
the ATM’s, a shoot-out with members of the South
African
Police services followed, but the culprits nevertheless managed to
make good their escape and no immediate arrests were
made.
These events at the Webber’s Centre, briefly summarised above,
were not disputed at the trial of the appellant, who was
the sole
accused before the trial court. At the trial the appellant entered
pleas of not guilty to all the charges and by way
of his plea
explanation (exhibit “A”) merely elaborated thereon by
denying that he had committed any of the charged
offences and
stating that he was “...
never part of the alleged group
that committed these offences.
”.
The real issue before the trial court was whether the respondent
(the State) had established, beyond a reasonable doubt, the
participation of the appellant in these events as a member of the
gang involved. That also, broadly speaking, is the essential
issue
before us on appeal to the full court.
It is apparent from the appeal record that the convictions of the
appellant resulted primarily from a written statement, attributed
to
him and alleged to have been made by him to a Captain N. B. Eva on
15 August 2008, the day of his arrest and detention. The
admissibility of this statement was contested by the defence during
the trial and became the subject of a so-called trial within
a
trial, at the conclusion of which the statement was ruled
admissible.
In the present appeal the appellant seeks to overturn this ruling
and to exclude this statement from the evidential material.
If
successful, then the remaining body of evidence, whilst establishing
the commission of the various offences, would not establish
the
involvement of the appellant as a participant therein.
It therefore becomes necessary at the outset to consider whether the
statement was properly received and admitted in evidence
and if so,
then whether the evidence as at the end of the trial duly
established the guilt of the appellant beyond a reasonable
doubt in
respect of those charges upon which he was convicted.
At the trail within a trial the State presented the evidence of four
witnesses, the first of which was Inspector (now Warrant
Officer) E.
A. Nel, the investigating officer and at the time attached to the
Organised Crime Unit at Cato Manor in Durban. According
to him he
was at his office when he unexpectedly received information to the
effect that two suspects relevant to the ATM bombings
were to be
found at E155, a house in E Section of the KwaMashu Township, North
of Durban, but would not likely remain there for
long.
As a result he hastily assembled a team and departed some time after
twelve noon for KwaMashu in search of the suspects, one
Maseven and
one Musa Nene, the latter being the appellant in the present appeal.
The team included, Nel apart, according to his
recollection also
Capt Eva, an Inspector Mostert and some other members whose
identities he could not recall, travelling in different
vehicles in
convoy.
Upon approaching the premises at E155 in KwaMashu the witness
recounted how he observed two black males standing on the road
in
front of the premises. Upon their arrival the members of the team
alighted with guns drawn and whilst the once person fell
down,
apparently in an act of surrender, the other turned and fled into
the premises of E155 and disappeared behind the building.
According to Nel he approached the prone male and established that
he was indeed Musa Nene, one of the suspects sought, whilst
the
fleeing male was the other suspect, called Maseven. The latter was
unsuccessfully pursued by other members of the team, whilst
Nel
remained with the prone suspect. According to Nel the latter, who
became the accused in the trial and is now the appellant,
was
informed of the nature of the investigation and of the charges,
warned of his constitutional rights and then made what was
termed a
report to Nel, after which he was formally arrested and put into the
police vehicle used by Nel. The medium of communication
between Nel
and the appellant at that stage was English and Nel maintained that
the appellant duly understood him.
When it became apparent that the fleeing suspect, referred to as
Maseven, had made good his escape, members of the team searched
the
premises at E155, but nothing was found. According to Nel it was
then decided to drive around in the area in the hope of
spotting the
missing suspect, but this search was both uneventful and
unproductive. At some stage further information was received,
as a
result of which, according to Nel, the team drove to Umlazi in
search of firearms, but with equally inconclusive results.
Thereafter the convoy returned to their base at Cato Manor. During
all this time the appellant remained throughout in the company
of
Nel in his vehicle whilst Capt Eva was in another vehicle forming
part of the convoy of police vehicles.
Upon their arrival at the Cato Manor offices, Nel claimed that he
found two complainants involved in an unrelated investigation
waiting for him. As a result and because he needed to attend to
them, he asked Capt Eva to assist and to take, what is known
as a
warning statement from the appellant. The suggestion in the evidence
is that the taking of such a warning statement is part
of the
immediate post arrest routine and Nel claimed that, had he believed
at the time that the appellant was likely to make
a statement in the
nature of a confession, then he would not have asked Capt Eva, a
member of the same unit as Nel, to take the
statement. According to
him he would instead have arranged for another officer (presumably
one uninvolved with the investigation
and from another unit), or a
Magistrate, to take the statement.
He conceded that the original statement which the appellant made to
him in KwaMashu was of a potentially incriminating nature.
He
contended, however, that the reasons for the arrest and detention of
the appellant was due to the nature of the original information
received, which implicated the appellant and that the potentially
incriminating statement made to him merely strengthened the
original
information.
Nel claimed that he handed custody of the appellant over to Capt Eva
in their (shared) office. Thereafter Capt Eva took the appellant
to
an adjoining office, whilst Nel remained behind and busied himself
with the two complainants relevant to the other investigation.
He
denied that he was present when Capt Eva took the statement from the
appellant, or that he was in any way involved in the
taking of the
statement.
He confirmed, upon enquiry, that from the time of the arrest and
detention of the appellant and until the latter was handed over
to
Capt Eva for the taking of the intended warning statement, the
appellant was not in any manner injured, assaulted or threatened,
nor were any promises made to him.
The evidence of Captain N. B. Eva, the second witness called by the
State in the trial within a trial, broadly confirmed but
from a
different perspective the evidence of Nel, but in addition also
dealt with the taking of the disputed statement from the
appellant.
Eva confirmed that upon their arrival back at the Cato Manor he, Nel
and the appellant entered their office, which
is a shared office
used by several member of their unit, to find some people waiting to
see Nel in connection with an unrelated
matter. As a result Nel
asked the witness, as a favour, to attend to the taking of a warning
statement from the appellant and
the witness agreed to do so.
According to Eva he thereupon printed down a blank copy of the
standard warning statement form on
his computer, arranged for
Warrant Officer (then Inspector) T. E. Mdlalose of the same unit to
assist by rendering services as
an interpreter and requested the
appellant to accompany them to an adjoining office, thereby leaving
Nel to attend to the individuals
who had called to see him.
Once they were in the adjoining office the witness said that he
closed the interleading door and the interview commenced at
approximately 4pm with only himself, Mdlalose and the appellant
present in the room. According to him he introduced himself and
Mdlalose to the appellant at the outset, but the appellant informed
him that he, the appellant, was fluent in English. According
to the
witness he nevertheless elected to use the interpretation services
of Warrant Officer Mdlalose for purposes of conducting
the interview
and then proceeded to inform the appellant of his constitutional
rights. In the process he read the contents of
the form to the
appellant, each portion so read was interpreted, the response of the
appellant was then interpreted and recorded
on the form in
manuscript writing. Where appropriate the appellant affixed his
thumbprint and his signature.
The witness was adamant that the statement was freely and
voluntarily obtained from the appellant, who was uninjured, in his
sound and sober senses and not influenced to make the statement. In
particular he was questioned on the invitation to the appellant,
as
contained in paragraph 4 of the statement (exhibit J.1), to make an
election whether to remain silent, remain silent pending
a
consultation with a legal practitioner, making a statement there and
then, or to answer or respond to questions to be posed
to him during
the course of the interview. This was by reason of the fact that
none of the four possible responses so listed
had been marked by the
witness to indicate the election allegedly made by the appellant at
the time.
In response the witness referred to the manuscript statement which
he attributed to the appellant and recorded from the top of
page 4
of exhibit J.1. He said that he merely recorded the response of the
appellant, which commenced with the words “
I want to tell
you about this case. I know about a lot of bombings ....
”
and considered the appellant’s election to be self evident in
context.
Because of the apparently self incriminatory nature of the statement
which the appellant was about to make, the witness said
that he then
interposed and recorded as part of the statement a further warning
to the appellant, namely “
Before you continue, let me warn
you that I am a Commissioned Officer this means that I have the same
powers as a Magistrate when
it comes to statement taking. In other
words what you say to me will be written down and used in court
against you. Do you understand?
” To this the appellant
according to him replied “Yes.” The statement then
purports to record the witness asking
the appellant “What do
you want to do?”, to which the appellant replied “I will
tell you everything”.
Thereafter the witness, according to his
evidence, proceeded to record the statement as made by the
appellant.
According to the witness he did not know in advance that the
appellant was likely to make a self incriminatory statement and
had
not himself spoken to the appellant after the latter’s arrest
because they travelled in different vehicles. The interview
concluded at 6.05 pm and the witness then handed custody of the
appellant back to Nel, together with the completed statement
which
he had recorded.
Thereafter the State called Warrant Officer T. E. Mdlalose to the
stand. He confirmed that he assisted with the taking of the
statement as an interpreter and broadly confirmed the evidence of
Capt Eva. At the conclusion of the evidence of this witness
the
State closed its case in the trial within a trial and the matter was
adjourned to the following day for continuation. However,
upon the
resumption of proceedings the State sought and obtained leave to
reopen its case in order to call an additional witness,
apparently
in order to rebut certain suggestions made by the defence in the
course of cross examination.
This witness was Cst Ravendran Naidoo, commonly known according to
him as “Shane” and who was also attached to the
Organised Crime Investigation Unit at Cato Manor. Whilst he was also
a member of the task team investigating ATM attacks in various
centres, he was not involved in the investigation of the Hammarsdale
case in respect of which the appellant was subsequently
charged and
convicted. As such he claimed not to have attended on 15 July 2008
at the crime scene at Hammarsdale, nor to have
been present or
involved on 15 August 2008 when the appellant was detained.
The witness explained that on the latter date he had not even
attended at the Organised Crime offices at all because he was at
the
Durban satellite campus of Tshwane University of Technology,
situated at Prince Alfred (now
Florence Nzama
)
Street, attending lectures during the hours from 9am to 6pm that
day. The matter stood down and he procured copies of the class
register for the day, as well as the relevant time table, in support
of his claimed attendance at the lectures.
That finally concluded the evidence of the State in the trial within
a trial, whereafter the defence called the appellant to
the stand.
According to his evidence he is a taxi operator and during the
morning of August 15
th
he went to the rank at Cato Manor
where he has taxi’s operating from. There he met one Thulani,
who he knew from the rank
and who then accompanied the appellant to
the latter’s home at E155 KwaMashu in connection with a
problem involving one
of the taxi association’s vehicles.
Whilst they were inside the residence of the appellant, the
appellant received a telephone
call from a Metro Police Officer who
was parked outside.
The appellant then went out and was speaking to this metro police
officer when the police raiding party arrived and he was commanded
to lie down at gunpoint, which he did. Meanwhile some of the other
police officers pursued Thulani. The Metro police officer,
to whom
the appellant had been speaking, was instructed by one of the police
officers to drive off. Upon enquiry the appellant
confirmed that
Thulani was also known as Maseven, which was one of the suspects the
police sought, according to the evidence
of the State witnesses. The
appellant related how he was then handcuffed and taken inside his
home which was the subject of a
search, but he was not told what
they were searching for. According to him a white police officer
wearing spectacles (and not
Warrant Officer Nel) was the one who
arrested him and who also informed him that the police were not
looking for him but for
Maseven. He was asked about guns but
professed to have no knowledge of any guns. He policeman wearing
spectacles and who claimed
that he knew the appellant a Musa, than
put him in a police vehicle and they drove off. Thereafter they
stopped at a PetroPort
where the policeman wearing spectacles
transferred to another vehicle and the appellant was left in the
company of several policemen,
including the investigating officer,
Warrant Officer Nel.
According to the appellant they did not proceed to Umlazi as the
State witnesses had said, but instead went directly to the Cato
Manor police offices. There, according to the appellant, he was
stripped, made to sit in a steel chair with a blue seat and asked
where were the firearms and Maseven. Whilst the investigating
officer (Nel) was initially present, he then left. A number of
policemen were present, including one called “Mossie”.
The appellant was assaulted by a large policeman who held
a flat
piece of tubing over his face, thereby preventing him from
breathing. The assault was interrupted by the arrival of the
spectacled police official who said that Maseven was in Umlazi. He
was instructed to dress and they then departed, together with
many
policemen and in a number of vehicles, for Umlazi. There, at an
unknown address, he was taken from the vehicle and instructed
to
point out where the firearms were kept, but he denied any knowledge
and they then returned to the Cato Manor offices.
However, on the way back to Cato Manor a red vehicle, driven by the
witness Cst Shane Naidoo, joined them. Back at Cato Manor
the
appellant claimed that he was again stripped, made to sit on the
same chair, assaulted and asked about firearms and Maseven.
In the
process he was surrounded, but assaulted by the person who was
behind him. He identified the witness Shane Naidoo as the
main
perpetrator of the assaults upon him, including placing a plastic
bag over the head of the appellant, thereby subjecting
him to
suffocation. However, a fat white police official arrived and
instructed Shane to stop the assault, after which the appellant
dressed again. Then the police official called Mossie took a blue
book from his pocket and told Shane to force the appellant
to place
his thumbprints “
on that book
”, which was done.
Thereafter Shane took some white papers, some with writing on and
others without, instructed the appellant
not to read the papers but
to affix his thumbprints thereon and sign where indicated, which he
did. He subsequently confirmed
that these documents formed part of
exhibit J.1, but denied that when he was compelled to sign these
papers and affix his thumbprints
thereon, the documents had been
completed. He denied that he had made any statement to Warrant
Officer Nel at the time of his
arrest, or even that Nel was present,
or had arrested him. He further denied that Capt Eva had taken any
statement from him,
or that Warrant Officer Mdlalose had assisted as
interpreter and claimed that the first time he saw exhibit J.1 was
at the office
of his attorney.
The trial court analysed the evidence at some length and with
considerable care. It concluded there were no material discrepancies
or improbabilities apparent from the evidence of Nel, Eva, Mdlalose
and Naidoo. I am in respectful agreement with this conclusion.
It is
of significance in my view that Naidoo, the person to whom the
appellant attributed a major role in the assault upon him,
was able
at short notice to obtain documentation which tended to corroborate
his absence from his workplace on the day the appellant
claimed to
have been assaulted. In addition the appellant’s evidence as
to when Naidoo is alleged to have assaulted him
stood in stark
contrast with what defence counsel put to Nel in cross examination.
Counsel put to Nel that Naidoo participated
in an assault upon the
appellant before they departed for Umlazi, whereas the appellant
testified that Naidoo drove a red vehicle
and joined the cavalcade
en route back to Cato Manor from Umlazi.
The trial court regarded the evidence of the appellant as
contradictory and unpersuasive. He claimed to have suffered injuries
in the assaults but produced no objective evidence corroborative of
such injuries. On the other hand, in the light of the fact
that the
appellant claimed not to have provided any of the contents contained
in the disputed statement attributed to him, the
contents thereof
tend to lend support for his involvement in the dramatic events of
the ATM bombing at Hammarsdale. Not only
do the contents of the
statement reflect detail which it is unlikely the police could have
fabricated, but they attribute to
the appellant only a relatively
minor role, namely that of a driver of one of the vehicles used in
the attack. In addition the
statement awards him a relatively small
share in the spoils (R8 900-00), but complains that “
they
(in context the controlling members of the gang)
said that it
was R10 000-00.
”
Probably the most glaring improbability emerging from the evidence
of the appellant was that he claims at no stage to have been
questioned relative to the ATM bombing at Hammarsdale on 15 July
2008, but only about the whereabouts of Maseven and some firearms.
Given the fact that the ATM bombing and the events of 15 July 2008
were the focus of the investigation, the version of the appellant
appears entirely unpersuasive.
A court sitting on appeal has a limited discretion to interfere with
the conclusions of a trial court. In
S
v Monyane and Others
2008
(1) SACR 543
(SCA) Ponnan JA at paragraph 15 stated that;
“
This court's powers to interfere on
appeal with the findings of fact of a trial court are limited. It has
not been suggested that
the trial court misdirected itself in any
respect. In the absence of demonstrable and material misdirection by
the trial court,
its findings of fact are presumed to be correct and
will only be disregarded if the recorded evidence shows them to be
clearly
wrong (S v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645e-
f). .... Bearing in mind the advantage
that a trial court has of seeing, hearing and appraising a witness,
it is only in exceptional
cases that this court will be entitled to
interfere with a trial court's evaluation of oral testimony (S v
Francis
1991 (1) SACR 198
(A) at 204e).
”
(approved of in
S v Kekana
[2012] ZASCA 75
(25 May 2012) at para 8]
In my view also in the present matter there are no material
misdirections and the decision of the trial court to admit the
disputed statement cannot be faulted. Implicit in that decision is
that the statement was made freely and voluntarily, without
any
undue influence being brought to bear upon the appellant. In
arriving at its decision the trial court was aware of the
undesirability of an officer in the position of Capt Eva taking down
the statement of the appellant, but it correctly concluded
that, in
the circumstances, no material irregularity occurred.
Once the statement was ruled admissible and Eva and Mdlalose
recalled to confirm its contents, the State case concluded and the
defence case was closed without recalling the appellant. The trial
court was then called upon to consider the body of evidence
as a
whole, in order to decide whether the State had discharged the
burden of proof beyond a reasonable doubt resting upon it,
despite
the fact that the accused did not again testify. In this regard the
trial court cited S v Van der Meyden
1999 (1) SACR 447
(W), a
decision subsequently approved of in S v Van Aswegen
2001 (2) SACR
97
(SCA), Cameron JA at page 101a - e and in S v Trainor
2003 (1)
SACR 35
(SCA), by Navsa JA in para 8.
Applying the authoritative approach laid down in S v Mgedezi &
Ors
1989 (1) SA 687
(AD) by Botha JA at page 705 I - 706 C, the
trial court concluded that the contents of the statement by the
appellant duly established
that he had, at all material times, the
requisite common purpose with the other perpetrators of the assaults
upon the ATM’s
during the evening of July 15
th
. The
trial court further held, on the authority of S v Molimi and Ano
[2006] ZASCA 43
;
2006 (2) SACR 8
(SCA), that the acts perpetrated that night and in
respect of which it held the appellant accountable by virtue of the
doctrine
of common purpose, all fell within the scope of the common
intention. Implicit in this conclusion was that such intention, even
if it did not amount to
dolus directus
, then at least
established
dolus
in the form of
dolus eventualis
and
that such actions by the co-perpetrators of the appellant were
reasonably foreseeable in the circumstances
.
The trial court embarked upon a meticulous analyses of the facts
relevant to each of the charges which the appellant faced and
concluded that with regard to the offences contemplated by counts 1,
2, 10, 12 and 13 his guilt had not been established. As
a result he
was discharged on these counts. The trial court adopted a cautious
approach and especially with regard to counts
2, 10, 12 and 13
appears to have considered that these acts, in the circumstances of
this case, were so unusual and so far removed
from what was
foreseeable in the execution of the common purpose, that it could
not be imputed to the appellant. (Molimi (supra)
at pages 20H to
21A).
Mr Mdladla, who appeared on behalf of the appellant both at the
trial, as well as in the appeal before us, attacked the fact
that
the trial court had admitted the disputed statement (exh J) into
evidence. In this regard counsel submitted that the trial
court
should not have accepted the evidence of the state witnesses, and
especially not that of Naidoo who claimed not to have
been present
at all. Accordingly, so counsel submitted, the trial court erred in
concluding that the appellant made the statement
to Capt Eva. By
implication it followed that even if it were to be held that such
statement was actually made by the appellant,
then it should
nevertheless not have been admitted because the State had not
established that it was freely and voluntarily made.
But counsel was
constrained to concede that the question ultimately became one of
credibility and of the factual findings by
the trial court.
Counsel also sought to persuade us on appeal that, in any event, the
trial court had not paid sufficient attention to the constitutional
rights of the appellant. In this regard counsel submitted that the
appellant had not been sufficiently appraised of his right
to legal
representation before making the statement. Again, so it appears to
me, this boils down to an issue of credibility.
If it is accepted,
as the trial court did, that the appellant in fact made the
statement to Capt Eva, whose evidence in this
regard was believed,
then it follows that the rights to legal representation as contained
in the constitutional warning to be
found in page 1 of exhibit J.1,
as well in paragraphs 3.3 and 3.4 in page 2 thereof, were in fact
adequately explained to the
appellant before he commenced with the
making of the statement, as recorded.
Finally counsel sought to persuade us that the contents of the
statement, if admitted, did not establish the guilt of the appellant
beyond a reasonable doubt. I have already indicated above that in my
view the analysis of the evidence as a whole at the conclusion
of
the trial by the trial court cannot be faulted. A court of appeal
does not have an unfettered discretion to interfere with
the
conclusions of the trial court. It may do so in limited
circumstances,
inter alia
, if the court of appeal is
persuaded that the decision was clearly wrong. (see: R v Dhlumayo
1948 (2) SA 677
(AD)). In my view this is not such a case.
As already indicated, I do not consider that there are any grounds
upon which to upset the credibility findings of the trial
court, or
its conclusions as at the end of the trial. That being so, I do not
consider that the entreaties of counsel for the
appellant to the
contrary can succeed.
I would therefore propose the following order:-
“
The appeal against the convictions of the
appellant by the trial court is dismissed and these convictions, as
well as the sentences,
as imposed, are confirmed.”
____________________
VAN ZÿL, J.
I agree. ____________________
JAPPIE, J.
I agree. ____________________
SCHAUP, A.J.
APPEARANCES:
For the Appellant : Adv Mdladla,
Instructed by .
Durban Justice Cntr.
For the Respondent : Adv A. Walters Instructed by the Director of
Public Prosecutions (KZN), Pietermaritzburg.
Judgment reserved : 1 August 2012
Judgment handed down : 21 AUGUST
2012
Page
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of
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