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[2012] ZAKZPHC 59
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Sewnarain v S and Another (AR 623/11) [2012] ZAKZPHC 59; 2013 (1) SACR 543 (KZP); [2016] 2 All SA 593 (KZP) (17 September 2012)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 623/11
In the matter between:
RAJIV MUNSOOK
SEWNARAIN
............................................
APPLICANT
and
THE STATE
..............................................................
FIRST
RESPONDENT
Ms SHARON MARKS N.O.
................................
SECOND
RESPONDENT
JUDGMENT
Delivered
on 17 September 2012
________________________________________________________
SWAIN J
[1] The applicant, by way
of notice of motion, supported by affidavits, seeks an order setting
aside his conviction for the murder
of his wife, Shanaaz Sewnarain,
for which he was sentenced to a term of life imprisonment by a
Regional Magistrate, Ms Sharon Marks
(who was subsequently joined as
a second respondent) sitting in the Regional Court at Durban on 22
December 2010.
[2] The matter is opposed
by the State. Copious affidavits, together with annexures have been
filed by both parties, which have
resulted in the application papers
growing to over seven hundred and fifty pages in length.
[3] The application is
also distinguished by a plethora of interlocutory applications, a
number of which were disposed of by consent,
at the commencement of
argument which in itself, exceeded two days in duration. Certain of
these applications were, however, not
so easily determined and will
be dealt with in this Judgment. For the purposes of completeness it
is necessary to record those
which were resolved by consent.
[3.1] The first
respondent’s failure to file additional affidavits timeously
was condoned.
[3.2] The first
respondent was granted leave to supplement its answering affidavit,
by the filing of an affidavit by the investigating
officer, Warrant
Officer Panday.
[3.3] The first
respondent was granted leave to file a copy of the warning statement
made by the applicant.
[3.4] The delay by the
applicant in launching these proceedings was condoned.
[3.5] The first
respondent’s late filing of its opposition to the application
was condoned.
[4] The remaining
applications which were opposed and require determination in this
Judgment are:
[4.1] An application by
the applicant to strike out the evidence of Attorney Moodley, on the
ground of legal professional privilege.
[4.2] An application by
the applicant to lead similar fact evidence of the investigation
methods employed by investigating officer
Warrant Officer Panday and
his investigation team in procuring pleas of guilty from other
accused persons, in support of the applicant’s
allegations that
similar methods were utilised to induce him to confess and plead
guilty, to the crime with which he was charged.
[5] The wish to lead such
similar fact evidence on behalf of the applicant, arose at the first
hearing of this matter, when we directed
that the first respondent
obtain affidavits from Attorney Moodley, who represented the
applicant when he pleaded guilty, as well
as Magistrate Govender, who
recorded the applicant’s confession. Affidavits by Warrant
Officer Panday and Attorney Moodley
had been filed by the first
respondent, in which they adopted the erroneous view that the
applicant was obliged to join them as
necessary parties in the
application. Until this was done and the papers were served upon
them, they adopted the view that they
would not be dealing with the
allegations made against them. This view was patently erroneous,
because they quite clearly did not
have a direct and substantial
interest in the outcome of this application. The allegations made by
the applicant however cast aspersions
upon Warrant Officer Panday and
Attorney Moodley. It was accordingly vital not only that they be
given an opportunity to deal with
these aspersions by filing
affidavits, but that they be filed to enable the merits of the matter
to be properly ventilated and
determined. As stated by Harms D P in
the case of
National Director
of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at pg 308 para 85
“
Nevertheless,
to be able to intervene in proceedings a party must have a direct and
substantial interest in the outcome of the litigation,
whether in the
court of first instance or on appeal. The basic problem with the
application is that the applicants have no interest
in the order but
only in the reasoning. They are in the position of a witness whose
evidence has been rejected or on whose demeanour
an unfavourable
finding has been expressed. Such a person has no ready remedy,
especially not by means of intervention. To be able
to intervene in
an appeal, which is by its nature directed at a wrong order and not
at incorrect reasoning, an applicant must have
an interest in the
order under appeal. The applicants do not have such an interest”.
[6] Before the first
hearing, it appeared the first respondent appreciated the error of
its ways and had accordingly launched an
application for leave to
supplement its answering affidavit, with a further affidavit by
Warrant Officer Panday. In directing that
affidavits be obtained by
the first respondent from Attorney Moodley and Magistrate Govender,
we acted in terms of Section 186
of Act No. 51 of 1977 as we were of
the view, that their evidence was essential to a just decision of the
case. That the present
proceedings serve before us as an opposed
application, does not in my view change their essential nature of
being
“criminal proceedings”
aimed as
they are at setting aside the applicant’s conviction and
sentence.
[7] At the time we
ordered that an affidavit be obtained from Attorney Moodley, we were
mindful of the fact that the applicant had
already launched an
application to strike out certain portions of Attorney Moodley’s
evidence, arising out of the brief affidavit
he had already filed. It
was quite obviously never our intention to simply ignore this
application to strike out portions of Attorney
Moodley’s
evidence, but that once his affidavit was filed, the applicant would
obviously be at liberty to expand his application,
to strike out any
further averments made by Attorney Moodley, with which he was
dissatisfied. It was on the same basis that we
granted leave to the
applicant to file affidavits dealing with the similar fact evidence
referred to above. The first respondent
would obviously still be
entitled to argue its admissibility once the relevant affidavits had
been filed. It was accordingly surprising
when the following
submission was made in the heads of argument, filed on behalf of the
applicant, before the resumed hearing,
by Mr. Y. Moodley S C, who
together with Mr. V. Moodley, appeared on behalf of the applicant.
“
At the
hearing on 07 June 2012 and notwithstanding that the applicant’s
application to strike out was not decided upon by
the above
Honourable Court, it directed the applicant
(sic)
to obtain a
further affidavit from Mr. Moodley. With respectful submission, the
Court misdirected itself in doing so and it is submitted
that the
further evidence raised in Mr. Moodley’s additional affidavit
remains inadmissible on the ground of attorney and
client privilege”.
At the hearing I
accordingly raised this issue with Mr. Moodley pointing out the basis
upon which the further affidavit of Attorney
Moodley was obtained.
That this was the basis upon which all parties understood the further
affidavit was obtained, was illustrated
by the fact that detailed
submissions were advanced by the applicant, in his heads of argument,
contesting its admissibility. If
I understood Mr. Moodley correctly,
he no longer persisted in this submission.
[8] Dealing firstly with
the admissibility of Attorney Moodley’s evidence and thereafter
the similar fact evidence, concerning
the investigation methods
employed by the investigating officer, Warrant Officer Panday.
[9] As pointed out above,
the challenge to the admissibility of the evidence contained in
Attorney Moodley’s affidavit, is
that of attorney and client
professional privilege. The first respondent, relying upon the
decision in
S v Tandwa &
Others
2008 (1) SACR 613
(SCA)
contends that the
applicant as a consequence of the allegations he made in his founding
affidavit, concerning the conduct of Attorney
Moodley, has by
imputation waived his right to legal professional privilege. The
following passages in Tandwa are instructive:
“
18. Since
accused 1 has nowhere expressly consented, the admissibility of his
advocate’s affidavit depends on whether he waived
his right to
legal professional privilege. In
Peacock
v SA Eagle Insurance Co. Ltd.
and
Harksen
v Attorney-General, Cape, and Others,
the
courts drew a distinction between implied and imputed waiver of legal
professional privilege. Implied waiver occurs (by analogy
with
contract law principles) when the holder of the privilege with full
knowledge of it so behaves that it can objectively be
concluded that
the privilege was intentionally abandoned. Imputed waiver occurs
where – regardless of the holder’s
intention - fairness
requires that the court conclude that the privilege was abandoned.
Implied waiver entails an objective inference
that the privilege was
actually abandoned; imputed waiver proceeds from fairness, regardless
of actual abandonment.
19. In propounding a doctrine of
imputed waiver (which may also be termed fictive or deemed waiver),
the judges in
Peacock
and
Harksen
drew on a passage
from Wigmore, much cited in our courts, that enjoins ‘fairness
and consistency’ in inferring the
extent of an implied waiver
of attorney/client privilege. Wigmore in the same paragraph goes on
to conclude that it is a ‘fair
canon of decision’ that
‘when a client alleges a breach of duty by the attorney, the
privilege is waived as to all
communications relevant to that issue’.
20. The canon seems to us to be
clearly right. Where an accused charges a legal representative with
incompetence or neglect giving
rise to a fair trial violation, it
seems to us most sensible to talk of imputed waiver rather than to
cast around to find an actual
waiver. Even without an express or
implied waiver, fair evaluation of the allegations will always
require that a waiver be imputed
to the extent of obtaining the
impugned legal representative’s response to them. Rightly
therefore, counsel on appeal accepted
that the advocate’s
affidavit was admissible in assessing the accused’s claims”.
[10] It is therefore
necessary to closely examine the allegations that were made by the
applicant concerning Attorney Moodley in
the founding affidavit. The
applicant states the following:
“
On the
following morning I was given my medication, which I took.
Thereafter, I was taken to the Durban Magistrate’s Court
by Mr.
Panday. He advised me that he had arranged for an attorney, Mr. D.
Moodley, to represent me and that the latter would take
care of
everything for me and that I should simply plead guilty. I mention
that when I arrived at Court with Mr. Panday, Mr. D.
Moodley was not
there. I recall that Mr. Panday telephoned someone and told him that
we were at Court and that he should come there.
I presume that the
telephone call was made to Mr. D. Moodley. The medication which I had
taken made me drowsy and I have a very
patchy memory of what
transpired at Court. I was tired and drowsy and have no memory of
writing any statement but I do recall being
approached by a male who
introduced himself as an attorney representing me. I did not know Mr.
D. Moodley and I met him for the
first time on this occasion. I also
have a vague memory of a brief discussion with this person and of
signing some documents. I
further recall the Prosecutor, the attorney
and Mr. Panday having a discussion in an office whilst I was outside.
I also have a
very patchy memory of what transpired when I appeared
in Court, but I do recall that I told the Magistrate I am pleading
guilty
to the charge. After my case had been finished, I was taken to
Westville Prison where I was incarcerated”.
Record pg 17 para 27
“
my
constitutional rights were not explained to me, nor had I been told
of my right to apply for bail or to use the attorney of my
choice,
namely Mr. Carl van der Merwe”
Record pg 19 para 28.4
“
Furthermore,
in terms of Section 35 (2) everyone who is detained has the right to
choose and consult with a legal practitioner and
to be informed of
this right promptly. In my case, although I procured the services of
my attorney, Mr. Carl van der Merwe, he
was not advised of the date
of my trial nor had I been given an opportunity of informing him of
the date of my trial. Consequently,
he was not in Court. Instead,
legal representation in the form of Mr. D. Moodley was foisted on me
by the Investigating Officer,
Mr. Panday”.
Record pg 30 para 44
“
I further
respectfully submit that my rights in terms of Section 35 (3) were
infringed in that:
I was not given adequate time and
facilities to prepare a defence. In this regard I respectfully submit
that my case was fast-tracked
leaving me with little or no
opportunity to prepare a defence;
I was denied legal representation of
my choice;
I was compelled to give
self-incriminating evidence in the form of a statement read into the
record by the attorney, Mr. D. Moodley’.
Record pg 31 para 46
“
I have
always had the financial means to procure the services of legal
representatives of my choice”.
Record pg 33 para 52
[11] It is quite clear
that the applicant challenged the authority of Attorney Moodley, to
represent him at the court proceedings
before the second respondent,
where he pleaded guilty to the charge. The applicant alleged that he
was
“tired and drowsy”
and did not
have any memory
“of writing any statement”
at
court but recalled
“being approached by a male who
introduced himself as an attorney representing me”.
The
applicant states that he did not know Attorney Moodley who he met for
the first time. The applicant alleges that he was prevented
from
utilising the services of his attorney of choice, namely Mr. Carl van
der Merwe and instead legal representation in the form
of Attorney
Moodley, was foisted upon him by Warrant Officer Panday. The
reference by the applicant to having no recollection of
“writing
any statements”
whilst at court, has a direct
bearing upon two statements which Attorney Moodley says were
completed by the applicant in his own
handwriting, at court and
before pleading guilty . One of these statements deals with the
merits of the matter (Annexure “F”
to first respondent’s
answering affidavit, Annexure “DM5” to Attorney Moodley’s
affidavit) while the other
statement (Annexure “DM6” to
Attorney Moodley’s affidavit) is in the form of a written
mandate containing
inter alia
the
following statement:
“
I instruct
Deyan Moodley to prepare my plea and tender such plea in court as
soon as possible”.
[12] It seems to me quite
clear that the applicant by challenging the authority of Attorney
Moodley to represent him at court, by
imputation waived the attorney
and client privilege relating to any communications between them,
concerning this issue, as well
as the written statement instructing
Attorney Moodley to act (Annexure “DM6”). Indeed, during
argument Mr. Moodley
conceded that the contents of Annexure “DM6”,
would be admissible on this basis. The passage I have quoted above
instructing
Attorney Moodley to prepare applicant’s plea and
tender it in court as soon as possible, cannot be read in isolation
because
standing alone it does not explain what plea Attorney Moodley
was mandated to present in Court. The preceding paragraphs explain
this in the following terms:
“
1.
I
am a
(sic)
accused
charged of murder for the shooting of my wife, Shanaaz Sewnarain.
2. I want to plea
(sic)
guilty
to the charge of murder.
3. I want to plea
(sic)
guilty
freely and vonterely
(sic)
and confirm that no one had forced
me to plea
(sic)
guilty”.
Consequently, the
contents of Annexure “DM6” are admissible. In this regard
Mr. Moodley submitted that only a partial
waiver of the privilege
could be imputed to the applicant, relating only to Attorney
Moodley’s authority to represent the
applicant.
[13] Turning to the
admissibility of what the applicant told Attorney Moodley concerning
the merits of the matter, as contained
in Annexure “DM5”.
Of crucial importance in this regard is the averment made by the
applicant in his founding affidavit
reading as follows:
“
I was
compelled to give self-incriminating evidence in the form of a
statement read into the record by the attorney, Mr. D. Moodley”.
The reason why I say this
allegation is crucial, is because I agree with the submission of Mr.
Moodley, that in deciding this issue,
one cannot have regard to the
further averments made by the applicant, in reply to Attorney
Moodley’s affidavit, concerning
his conduct. These averments
were clearly made by the applicant, in reply to the substantive
averments made by Attorney Moodley
in his affidavit, which the
applicant was obliged to deal with before the admissibility of
Attorney Moodley’s statement had
been determined.
[14] The statement which
was read by Attorney Moodley into the record, at the court
proceedings was clearly the applicant’s
statement in terms of
Section 112 (2) of Act No. 51 of 1977 (Annexure “C” to
first respondent’s answering affidavit).
In this statement the
facts upon which the applicant pleaded guilty to the charge were set
out in some detail. It is, in my view,
clear that the statement by
the applicant that he
“was compelled to give
self-incriminating evidence”
in the form of the
Section 112 statement, drafted by Attorney Moodley and read into the
record by him, was not only directed at
Warrant Officer Panday, but
also at Attorney Moodley, for the following reasons. This statement
must be read in the context of
the preceding allegations made by the
applicant concerning Attorney Moodley that
“I was not
given adequate time and facilities to prepare a defence”
and
that his
“case was fast-tracked leaving me with little
or no opportunity to prepare a defence”.
A failure
to properly prepare the applicant’s defence can have relevance
only to the conduct of Attorney Moodley, who would
have been obliged
to investigate this and prepare the applicant’s defence
properly. The allegation against Attorney Moodley
that he neglected
his duty in this regard and participated in the
“fast-tracking”
of the applicant’s case is clear. In addition, the
applicant alleges that he has
“a vague memory of a brief
discussion with this person and of signing some documents”
and
that he has
“no memory of writing any statement”.
Again the allegation is clear. Attorney Moodley failed
to properly consult with the applicant and obtained the statements
from the
applicant (Annexures “DM5” and “DM6”
to Attorney Moodley’s statement) when the applicant was not in
a proper state to appreciate what he was writing and signing. I
accordingly disagree with the submission made by Mr. Moodley, that
the applicant in his founding affidavit did not cast any aspersions
on
Attorney Moodley, apart
from stating that Attorney Moodley was foisted upon him as his legal
representative by Warrant Officer Panday.
[15] In my view, it is
quite clear that the applicant charged Attorney Moodley as his
“legal
representative with incompetence or neglect giving rise to a fair
trial violation”
Tandwa
supra
at 626 c – d
Such allegations
“
require that
a waiver be imputed to the extent of obtaining the impugned legal
representative’s response to them”.
Consequently, the
contents of Attorney Moodley’s affidavit are admissible to
assess the appellant’s claims, that he
did not consult with him
properly and did not properly prepare his defence and to refute the
applicant’s allegation that
he did not receive a fair trial. On
this basis, the contents of Annexure “DM5” are admissible
as its contents are directly
relevant to the issue of whether
Attorney Moodley, properly ascertained whether the applicant had any
defence to the charge.
[16] This conclusion
renders it strictly unnecessary to deal with the specific paragraphs
which the applicant sought to have struck
out in the first
respondent’s answering affidavit, but I will do for the sake of
completeness. The first respondent conceded
that the allegations
contained in paragraphs 12.3 (e) and 34.4 of first respondent’s
answering affidavit, should be struck
out. It was alleged in these
paragraphs that the applicant’s instructions to Attorney Carl
van der Merwe
“from the beginning was to plead guilty”
.
This averment was confirmed by Attorney van der Merwe in a supporting
affidavit. In my view, the concession made by the State
was correctly
made, as there is no basis upon which the applicant waived the
privilege pertaining to what he discussed with Attorney
van der
Merwe.
[17] The remaining
paragraphs which the applicant wishes to have struck out of the first
respondent’s answering affidavit
are paragraphs 12.3 (c), (d)
and (k), 34.2, 34.3 and 43.5 (f), (g) and (h). The applicant also
seeks to have Annexures “F”
and “G” to first
respondent’s answering affidavit, struck from the record.
Annexures “F” and “G”
are the statements
“DM5” and “DM6”, which I have found are
admissible. Paragraphs 12.3 (c) and (d) and
paragraphs 34.2 and 34.3
do not contain evidence of any communication that took place between
the applicant and Attorney van der
Merwe or Attorney Maharaj, when
the applicant consulted with them. It is simply alleged that the
applicant consulted with these
attorneys on a specific date and time
and that he consulted with Attorney van der Merwe for an hour. It is
also alleged that Attorney
Maharaj contacted Attorney van der Merwe
on behalf of the applicant. In my view, there is no basis to exclude
this evidence on
the basis of legal professional privilege, because
it does not relate to any communications that passed between the
applicant and
Attorney Maharaj or Attorney van der Merwe. The
remaining paragraphs which the applicant seeks to have struck out are
paragraphs
12.3 (k) and 43.5 (f), (g) and (h), which deal with what
transpired between the applicant and Attorney Moodley, which I have
found
to be admissible.
[18] Turning to the
admissibility of the similar fact evidence, which the applicant has
placed before this Court, relating to the
investigation methods
employed by the Investigating Officer, Warrant Officer Panday and his
investigation team, in procuring pleas
of guilty from other accused
persons.
[19] The evidence in
question, is sought to be admitted on the basis that it reveals
“a
concerted
modus operandi”
or
“an
investigational system”
on the part of Warrant
Officer Panday and his investigation team
S v Letsoko and
Others
1964 (4) SA 768
(A)
at 775 C - D
which it is submitted
includes assaults, threats of assault, denial of Constitutional
rights relating to
inter alia
contact
with family members, engaging the services of a legal advisor of the
accused’s choice, of bringing accused persons
in haste to
court, foisting a legal representative chosen by the investigating
officer on accused persons, compulsion exerted on
accused persons to
plead guilty, the choice of a particular prosecutor who acts for the
State when pleas of guilty are tendered,
the unlawful removal and
appropriation of accused persons possessions and undue promises made
to accused persons for some reward
or benefit.
[20] It is clear that to
be admissible the similar facts must bear a
“striking
similarity”
to the evidence in relation to the
offence charged. The admission of such evidence requires
“a
strong degree of probative force”
, bearing in mind
that its admission is out of the ordinary and unusual. A stricter
test is applied when similar fact evidence is
sought to be led
against an accused, as against when it is to be used against the
police, because of the concept of the prejudicial
effect on the
accused
S v M & others
1995 (1) SACR 667
(BA) at 692 f – h
The determination of
whether the evidence possesses
“a strong degree of
probative force that outweighs any prejudicial factors”
depends
“a great deal on the common sense and practical
experience of the judicial officer”.
S v M at 689 c
The primary requirement
for admissibility of such evidence is its
“cogency”
.
By this is meant
“the ability of the evidence to assist
the trier of fact in drawing reasonable inferences. This fact is
sometimes referred
to as ‘relevance’”.
S v Yengeni
1991 (1) SACR 322
(C) at 324 F
“
The first
question which ought to be asked is whether the similar fact
evidence, if true, will in the particular circumstances,
and having
regard to the other available evidence, provide reasonable material
from which to draw inferences which will materially
assist in
deciding the issues before a court. It is only if the answer to this
primary question is in the affirmative that further
questions such as
questions of prejudice, the requirements of justice and the
practicality of admitting the evidence need to be
addressed. Once
identified these factors are not examined in isolation, but have to
be weighed against the cogency of the similar
fact evidence”.
Yengeni at 324 f –
h
[21] In my view if the
evidence of Khambula, Madlala and Saed is true, it will in the
particular circumstances of this case, regard
being had to the
allegations made by the applicant, together with the allegations made
by Yunus Khan (
aka
Boxer),
provide reasonable material from which to draw inferences which will
be of material assistance in determining the allegations
made by the
applicant concerning his treatment by Warrant Officer Panday and his
investigation team. In coming to this conclusion
I do not overlook
the fact that the events complained of by Khambula, Madlala and Saed
took place during January 2009, whereas
the events complained of by
the applicant took place during December 2010. As regards the
“
nexus”
between the two sets of events, there is consequently no
proximity in time, but there is on the face of it
“in
method or in circumstances”
.
S v M pg 688 a –
b
Although, as submitted by
Mr. Truter, who appeared on behalf of the first respondent, there are
differences in the facts pertaining
to the arrest, interrogation and
conviction of Khambula, Madlala and Saed compared to that of the
applicant, I do not regard these
differences as being of such
substance to exclude the reception of the evidence.
If the evidence is
admitted, it is clear that practical difficulties may be encountered,
as all of the relevant evidence concerning
the allegations of
Khambula, Madlala and Saed will have to be led. In addition, the
determination of their allegations will effectively
require the
determination of what is really a collateral issue. However the
requirement of justice, in my view, outweighs this
aspect.
[22] Before dealing with
the merits of the matter, a further issue which requires
determination is the contention of Mr. Moodley,
that it is not
permissible for Magistrate Govender, who recorded the applicant’s
confession, or the first respondent
“to rely on matters
extraneous to what is recorded on the pro-forma form”.
It
is submitted that
“the Court should pay no attention to
the Magistrate’s
ex post facto
reconstruction of the
events when she took down the confession”.
As I
understand the argument it is that such evidence is inadmissible on
the ground that the written record is the sole testimonial
of what
was said. Mr. Moodley quoted no authority in support of his
submission. In
S v Jakatyana and
Others
1990 (1) SACR 420
(CK) at 421 i – j
it was pointed out that a
magistrate taking down a statement was not merely a recording machine
, but is supposed to investigate
the matter in order to establish
whether the statement made is freely and voluntarily made. The
authors of the work
Commentary on the
Criminal Procedure Act at pg 24 – 63
state the following:
“
In respect
of the requirement that the accused be in his sound and sober senses,
however, recourse may be had to the observations
of the recording
magistrate who may be in a position to judge this matter for
himself”.
I agree with this
statement and can find no basis for restricting the evidence of
Magistrate Govender, to what is contained within
the confines of
Annexure “B”, to the applicant’s founding
affidavit.
[23] Turning to the
merits of the application. What lies at the heart of the applicant’s
case is the evidence of Dr. Laban,
a psychiatrist, Professor
Schlebusch, a clinical psychologist and Dr. Bosch, a clinical
psychologist.
[24] Dr. Laban, for the
reasons and on the grounds set out in a report (being Annexure “E”
to the applicant’s
founding affidavit) expressed the view that
the merits of the applicant’s confession as well as his plea of
guilty, could
be challenged on psychiatric grounds. Professor
Schlebusch expressed the view that the applicant at the time he
confessed and at
the time of his trial had
“decompensated
psychologically”.
According to Professor
Schlebusch the applicant’s insight and judgment was impaired,
he suffered from this psychopathology
and presented with this
cognitive dysfunction. Dr. Bosch, by reference to the reports of Dr.
Laban and Professor Schlebusch, concluded
that the applicant could,
without adequate forethought and appreciation of the consequences,
indicate that he wanted to plead guilty
and do so.
[25] On the basis of
these reports, Mr. Moodley submits that the applicant was not fit to
stand trial on account of mental incapacity
and pleaded guilty under
such circumstances.
[26] As against the views
of these experts, the first respondent relies upon the evidence of
Magistrate Govender, Magistrate Marks
and Attorney Moodley that the
applicant was in his sound and sober senses when he made his
confession to Magistrate Govender and
when he pleaded guilty before
Magistrate Marks. Magistrate Govender states she
“explained
and discussed with the applicant what sound and sober senses means in
more detail”
and “
the applicant
understood what I explained to him and indicated to me that he was in
his sound and sober senses”.
Magistrate Govender
added
“I am morally convinced that the statement I
recorded was made freely and voluntarily by the applicant in his
sound and sober
senses without being unduly influenced ……”
.
[27] Attorney Moodley
states that he asked the applicant “
whether he was
assaulted, unduly influenced or compelled by the police to make the
confession. He told me that he made the confession
freely and
voluntarily”.
In addition he states
that
the applicant was “
rational and coherent”
during
their consultation and
“was in his sound and sober
senses at all relevant times and fit to stand his trial”.
[28] Magistrate Marks
states that
“I have twenty seven years experience as a
Magistrate of which twenty years have been served of the Regional
Court bench.
My observation of the applicant was that he was in his
sound and sober senses at the time he pleaded to the charge on 22
December
2010. If he did not appear to be in his sound and sober
senses I would most definitely have noted this and questioned him
accordingly”.
[29] However, in reply to
these views of Magistrate Govender, Attorney Moodley and Magistrate
Marks, the applicant put up affidavits
by Professor Schlebusch, Dr.
Laban and Dr. Bosch where they state the following. Professor
Schlebusch states that:
“
Given the
complex psychodynamics that Mr. Sewnarain presented with at the time
he pleaded guilty, it would not have been possible
for someone
without specialised training/expertise in clinical psychology to
identify his underlying symptoms”.
Dr. Laban stated the
following:
“
The
assessment of his mental capacity was beyond the scope of court
officials as it would have required psychiatric/medical training
to
determine the impact that the combination of several factors at
play”.
As regards the views of
Attorney Moodley, she stated the following:
“
It would not
have been possible for his attorney to determine that there was
impairment in his ability to register events as they
were happening
or detect the presence of disassociation due to extreme levels of
stress which would have also impaired the mental
capacity of the
accused”.
Dr. Bosch states that
“
Under these
circumstances the above described psychopathology and associated
psychodynamics which would have underpinned his cognitive
processes,
decision making and actions in pleading guilty, would not be
identified by a lay person or any individual without specific
training and qualifications in clinical psychology or psychiatry and
without an adequate evaluation”.
[30] Is there
consequently a real, genuine and
bona fide
dispute of fact on
the papers, concerning the mental state of the applicant at the time
of his confession and when he pleaded guilty?
Although Professor
Schlebusch, Dr. Laban and Dr. Bosch state that Magistrate Govender,
Magistrate Marks and Attorney Moodley would
have been unable to
assess the applicant’s mental capacity, their views are
supported in the case of Magistrate Govender
by the written record of
her interaction with the applicant and his confession, in the case of
Attorney Moodley by the contents
of Annexures “DM5” and
“DM6” written by the applicant himself and in the case of
Magistrate Marks by the
transcript of the court proceedings. A
further fact to be considered is that Mr. Truter criticised the
reports of these experts
on a number of grounds. He submits that the
experts claim of cognitive dysfunction and impairment on the part of
the applicant,
was established and diagnosed months after the
applicant’s conviction. He submits the experts based their
conclusions upon
the
ipse dixit
of the applicant and did not
consult with other important persons, who interacted with the
applicant during his confession and
plea, namely Attorney Moodley,
Magistrate Govender, Magistrate Marks as well as Dr. Singh, who
examined the applicant before and
after he made his confession to
Magistrate Govender. On the face of it there is some force in his
submissions, but Mr. Moodley
quite correctly, submits that the
experts have not had an opportunity to deal with these criticisms,
which were not part of any
allegations made by the first respondent,
because the first respondent inexplicably did not seek the views of
any experts to comment
on the views of the applicant’s experts.
[31] Various tests have
been formulated by the courts to determine whether a real, genuine
and
bona fide
dispute of fact arises on the papers, which are
conveniently summarised in the case of
South Coast
Furnishers v Secprop Investments
2012 (3) SA 431
(KZP) at 439 H – 440 A
in the following words
“
In the light
of what I have set out above, I do not believe that it can be said
that the version of the respondent raises ‘bald
or
uncreditworthy denials…. fictitious disputes of fact, is
palpably implausible, far-fetched or so clearly untenable that
the
court is justified in rejecting them merely on the papers or is
‘fanciful and wholly untenable,’ or so ‘inherently
improbable that the respondent’s version is incredible’.
I am satisfied that the respondent ‘has in [its] affidavit
seriously and unambiguously addressed the fact said to be disputed’.
In the absence of ’direct and obvious contradictions’
judgment on the credibility of the deponent to the respondent’s
answering affidavit must be left open”.
[32] The views of
Magistrate Govender, Magistrate Marks and Attorney Moodley that the
applicant was at the relevant times in his
sound and sober senses,
cannot in my view be rejected on the papers as
“palpably
implausible”
,
“far-fetched”
or
“improbable”
to the extent that they
are incredible, due regard being had to the applicant’s
experts’ views that they would have
been unable to assess the
applicant’s mental capacity. Allied to this is my concern that
these experts have not consulted
with any of these witnesses in
reaching the conclusions they did. Because there are no obvious
contradictions in the evidence of
Magistrate Govender, Magistrate
Marks and Attorney Moodley it is not possible at this stage of the
proceedings, to judge their
credibility. I am therefore of the view
that a real, genuine and
bona fide
dispute of fact arises on the papers, as to whether the
applicant was in his sound and sober senses, when he confessed and
pleaded
guilty to the crime for which he was charged.
[33] It is trite that
there are two ways in which such a dispute of fact may be resolved.
By way of the approach enunciated in
Plascon-Evans
Paints (Pty) Ltd. v Van Riebeeck Paints (Pty) Ltd.
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
at 634 H – 635 C
where relief may be
granted where
“
those facts
averred in the applicant’s affidavits which have been admitted
by the respondent, together with the facts alleged
by the respondent,
justify such an order”
or by the referral of the
dispute to the hearing of oral evidence.
[34] In my view, an
application of the so-called Plascon-Evans rule to the facts of the
present case, would be entirely inappropriate
in determining the
dispute as to the applicant’s mental capacity at the relevant
times. Resolving the dispute based simply
upon the views of
Magistrate Govender, Magistrate Marks and Attorney Moodley, could
result in a grave injustice to the applicant.
[35] It is therefore
unfortunately necessary for the matter to be referred for the hearing
of oral evidence, to determine this most
important issue. I say
“unfortunately”
because such a
procedure will obviously lead to a further delay, which is obviously
of concern to the applicant who is incarcerated
and to further
expense to be incurred by the applicant. Because of these concerns, I
at the outset of the hearing, asked Counsel
for both parties whether
they wished to apply for the matter to be referred for the hearing of
oral evidence. After a short adjournment,
both Counsel indicated that
they did not wish the matter to be referred for the hearing of oral
evidence. My query to Counsel was
also dictated by the following
dictum
of Harms D P
(as he then was) in the case of
Law Society
Northern Provinces v Mogami
2010 (1) SA 186
(SCA) at 195 C – D
where he said the
following
“
An
application for the hearing of oral evidence must, as a rule, be made
in
limine
and
not once it becomes clear that the applicant is failing to convince
the court on the papers or on appeal. The circumstances
must be
exceptional before a court will permit an applicant to apply in the
alternative for the matter to be referred to evidence
should the main
argument fail”.
[36] As regards the
competence of a court hearing an opposed application
mero
motu
to order a referral to oral evidence,
the provisions of Rule 6(5) (g) extends a wide discretion to the
court.
Santino Publishers
v Waylite Marketing
2010 (2) SA 53
(GSJ) at 56 C – F
The rule provides that
where an application cannot be properly decided on affidavit the
court may dismiss the application
“or make such order as
to it seems meet with a view to ensuring a just and expeditious
decision. In particular, without affecting
the generality of the
aforegoing it may direct that oral evidence be heard on specific
issues with a view to resolving any dispute
of fact”.
[37] The undesirability
of a Judge
mero motu
ordering
a referral to oral evidence was dealt with in the case of
Joh-Air (Pty) Ltd.
v Rudman
1980 (2) SA 420
(T)
at 428 in fin – 429 C
in the following words
“
It requires
in my view a bold step, by a presiding Judge in an opposed
application, to refer the matter to evidence or trial
mero
motu
,
because it is a real possibility that the applicant had decided not
to ask for such procedure to be followed because: he may not
want to
be involved in the cost thereof; his prospects of success, after
studying the answering affidavits, may be slender; it
may possibly
lead to an undesired protracted hearing; the amount involved may be
small; the respondent may be a man of straw or
on account of any of
the other usual considerations in deciding whether or not to apply
for the provisions of Rule 6 (5) (g) to
be invoked. In the present
case the amount involved is only half of R5,375.
In my view it should not be left to
the presiding Judge to determine, in the light of what I have said,
whether the application
should be decided on the affidavits or not.
In proper circumstances the presiding Judge may, in his discretion,
decide to do otherwise”.
[38] I consider that the
present case is one where proper circumstances exist for its referral
mero motu
for the
hearing of oral evidence. The applicant has been convicted of the
most serious of crimes, murder, for which he has been
sentenced to
life imprisonment. To dismiss the application on the ground that the
applicant should have foreseen the present dispute
of fact arising
and sought relief by way of action, in all the circumstances, could
cause a grave injustice to the applicant. An
application of the
Plascon-Evans rule to resolve the dispute may have a similar
consequence. The case is one where the interests
of justice demand
that the evidence be properly tested and evaluated.
[39] I have discussed the
future conduct of this matter with Patel J P and he has directed that
the matter be afforded preference
and set down for hearing before
Henriques J and I, in due course. The order I intend making provides
for the holding of a Rule
37 Conference between the parties. At such
Conference the parties should, in accordance with the order, reveal
the witnesses they
will be calling and estimate the number of days
required for the hearing. In determining which witnesses will be
called, both parties
should act in accordance with the rulings I have
made in this Judgment, concerning the similar fact evidence sought to
be led by
the applicant, as well as the evidence of Attorney Moodley
and Magistrate Govender. Thereafter, application may be made to the
Registrar for suitable dates for the hearing in consultation with the
Judge President, to enable Henriques J and I, to be allocated
to hear
the matter.
I grant the following
order:
The matter is referred
for the hearing of oral evidence
on:
Whether the applicant
was in his sound and sober senses when he confessed to the murder of
Shanaaz Sewnarain before Magistrate
Govender on 20 December 2010
and/or when he pleaded guilty to the charge of murdering Shanaaz
Sewnarain, before Magistrate Marks
on 22 December 2010 and
Whether the conviction
of murder and sentence of life imprisonment imposed by Magistrate
Marks on 22 December 2010 should be set
aside.
The deponents to
affidavits shall be made available for cross-examination at the
hearing of the matter.
The parties may call as
witnesses persons who are not deponents to affidavits in these
proceedings, provided that a summary of
a proposed witness’s
evidence shall be delivered no later than five days before the Rule
37 Conference, which must be held,
well in advance of the date of
the hearing, by the parties.
The provisions of Rule
35, 36, 37, 38 and 39 shall apply
mutatis mutandis
to the
hearing of oral evidence.
The Registrar is
directed to afford preference to the parties in the set down of this
matter before Swain J and Henriques J, subject
to the allocation by
the Judge President of these Judges to hear this matter.
The averments made in
paragraphs 12.3 (e) and 34.4 of the first respondent’s
answering affidavit, are struck out on the
grounds that they are
inadmissible in evidence.
The costs of this
application are reserved for determination by the Court hearing the
oral evidence.
____________
SWAIN J
I agree
_____________
HENRIQUES J
Appearances /…
Appearances
For the Applicant
: Mr. Y. Moodley S C with Mr. V. Moodley
Instructed by
: Prash Babooram Attorneys C/o Logan Chetty Attorneys
Pietermaritzburg
For the Respondent
: Mr. A. Truter with Ms C. Naidoo
Instructed
by
: Director of Public Prosecutions
Date
of Hearing
: 30 & 31 July 2012 and
02 August 2012
Date of Filing of
Judgment
: 17 September 2012