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[1984] ZASCA 166
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S v Myende and Another (186/84) [1984] ZASCA 166; [1985] 1 All SA 474 (A) (30 November 1984)
163/84
186/84
MCB
IN
T
HE SUPREME
C
OURT OP S
OU
TH
AF
RICA
(
APPELLATE
DIVISION
)
In
the matter between:
BONGINKOSI OSBORNE MYENDE
APPELLANT
and
THE STA
TE
RESPONDENT
CORAM : VILJOEN, BOTHA, JJA et VIVIER, AJA
HEARD : 21 NOVEMBER
1984
DELIVERED : 30 NOVEMBER 1984
JUDGMENT
VILJO
EN, JA
In the Court
a qu
o the appellant was, on a
charge of having murdered his father, convicted as
2/ charged
2. charged and, no extenuation having been found, was
sentenced to death. He was also convicted of the
unlawful possession of the fire-arm with which, on
the Court's finding, he had killed his father. He
was granted leave by the
Court a q
uo
to appeal to this
Court against his conviction on both counts. The
appeal was set down for 5 November 1984. Shortly
before the appeal was due to be heard, a Notice of
Motion dated 26 October
1984 in terms of s22 of the
Supreme Court Act 59 of 1959, was filed praying for
an order in the following terms:
(a) The conviction and sentence of BONGINKOSI OSBORNE MYENDE on a charge of
murder and a charge of possession of a firearm without
a licence in the Durban
and Coast Local Division of the Supreme Court of South Africa under case number
302/83 on the 17th April,
1984, is hereby set aside;
3/.... (b) The
3.
(b) The case is remitted to the Durban and Coast Local Division of the Supreme
Court of South Africa:
(c) The Honourable Trial Judge is directed:
(i) to hear and
consider evidence by either party relating to the truth or otherwise of the
contents of the letter addressed to the
applicant and which is attached to the
applicant's affidavit as Annexure "A"; and
(ii) thereafter to give judgment anew in this case.
On 5 November 1984, because the State had
not had a
proper opportunity to consider and to deal
with the application, the matter
was postponed to
21 November 1984. On this latter date this Court had
before it the Notice
of Motion referred to above with
an affidavit by the applicant (I shall
hereinafter
4/.... refer
4. refer to him as the appellant) and a copy of a
letter
alleged by him to have been written to him
and signed by his mother, in
answer to the said
application there was before us a Notice of
Intention
to Oppose with, attached to it, a denial on affidavit
by the
appellant's mother that she had written the
letter. Further affidavits, one by a handwriting expert
to the effect that
the handwriting of the person who
wrote the letter was not that of the
appellant's
mother and another one to the effect that the finger
prints on the letter were not the finger prints of the
appellant's mother, were filed. There was no replying
affidavit. On these papers this Court must now consider
the application.
5/.... The
5. The letter which the appellant says he
received
from his mother is in the Zulu language, but, for the benefit of this Court, it
was translated into English by an official
court interpreter employed by the
Department of Justice. The address which it contains purports to be the address
of the mother,
I presume. The translation reads as follows:
"My son,
I did not know that I will eventually accomplish my liking. As I had for a long
time wished that you be sentenced like this. I will
tell you the whole truth
which I did so that you be there, because I know very well that you will not
have the chance to answer for
yourself, want that by the time you die you know
the whole truth very well, so that your father meets you properly as you were
his
most loved one. I was nothing when you were present.
I was very glad when there was ill feeling between you (plural) because I even
told him to chase you away. What annoyed me about
your father was
that
6/.... he
6.
he told me that if you came back home he will forgive you as his only son,
and that he will buy you a new motor vehicle to indicate
that he has forgiven
you. I became so angry when I heard that and I realised that all the money will
go to you, because he had recently
bought you a brandnew car, a Big Six. I
thought and decided that it would be better if he be got out of the way, but
that you should
shoulder the blame so that he no longer does what he wished to
do about you.
I succeeded in my wishes because the day in which your father died was the
day you came saying you had come to ask for pardon from
him. It was then easy.
So that it could be seen as if you had done that because you had quarrelled. Son
I hired people to get rid
of him with a gun so in fact you were suspected of the
crime. The Magistrate had acquitted you on the first occasion in 1982. I could
not rest after your acquittal because I thought you will see (realise) that I
had pushed the blame on you. I tried to do everything
for you so that you do not
see (realise) but my heart is sore because I think that people will know about
this disgrace. I took the
case up afresh and hired (bribed) witnesses to give
false evidence in Court that
7/.... you
7.
you in fact did this. I have at last succeeded. I am now living very happily
with my female children because you could see very well
that you will have the
right to be . the head of the home as your father is dead but you have flopped
badly my child I am telling
you.
I knew very well that you would not agree that we do this killing together
because you would not be brave to kill your natural father.
No child in his/her
sound senses can do that unless you are mad.
I have caused people, the police, even the law to believe that you did this
thing because I told them in papers also that you are
a bad child, because I
want you to die, they must not release you.
Tell me, as you had so many friends, why are they not sorry because you
squandered my husband's money with them. They will not help
you because they
know how bad you are although you will die for something you have no knowledge
of. if anyone would assist you he/she
would be brave and I can do to him/her
what I did to your father.
I will not furnish you the names of the people I
8/.... hired
8.
hired to do this because you know them, they
are people you are acquainted with, you saw
some of them at Durban Supreme Court on the
16th and 17th April, 1984, and you will die
hating them. Yet they are also innocent,
they are destitute people, they wanted money,
you also know my child that money is well
received.
What is between me or you will finish in Heaven where nothing will be hidden. My
children also know that you are a criminal that
is why they do not care for you
because they think that you are a lion. Yet they do not know that I am the
instigator.
Forgive me when you go to your grandfathers.
I am your mother, Signed: R MNYENDE"
It appears
from the appellant's affidavit
that his
pro deo
counsel handed the original letter
to prosecuting
counsel who in turn handed it to the
police officer or officers who
investigated the case
9/ .... and
9. and they in turn sent it to a handwriting expert
for
further investigation and tests to be carried
out by them "in order to establish whether it is
in fact my mother's
handwriting that appears on the
letter." I assume that the decision to hand over
the letter to the State
prosecutor was taken by
defending counsel on his own initiative. Whether
the
appellant expected or approved the step taken by his
counsel does not
appear from his affidavit. Of
course, he had no alternative but to sigh the
affidavit
which was prepared by
pro
deo counsel. There is,
furthermore, a complete dearth of information surrounding
the receipt of
this letter. His affidavit, of which
his counsel is the author, contains the
following two
10/.... paragraphs
10. paragraphs:
"13. It is my respectful submission that
the
contents of annexure "A" speak for itself and clearly establishes that I am
innocent and that my mother and the assassins she hired
are the ones to be
blamed for my father's death. It is therefore with respect my submission and
conviction that should this Honourable
Court direct this matter to be referred
back to the Durban and Coast Local Division for the leading of further evidence
and for this
aspect concerning annexure "A" to be properly canvassed and tested,
the truth will no doubt eventually emerge.
14. I
respectfully submit further that at no
stage during the trial did I have any proof whatsoever that my mother might be
involved in the killing of my father. It is only well
after the trial and when
annexure "A" came to hand that I became convinced that my mother was the author
of my father's death. The
reason why evidence to this effect was not presented
at the trial Court is therefore with respect twofold,
namely:
11/.... (a) I did
11.
(a)
I did not
suspect my mother of the murder; and
(b)
In
any event, even if I had suspected her, 1 had no evidence at my disposal to
prove it."
The mother's affidavit
contains the following
paragraphs:
"2. On 1st October 1984 on request of the Police I called at Umlazi Police
Station where I was shown a letter alleged to have been
written by me. This
letter is attached to the Applicant's affidavit as 'Annexure A'. I bear no
knowledge of the letter and did not
write it. I did write a letter to my son in
Pretoria Prison but it is not the same letter now in possession of the
Police.
3. it can clearly be seen that my surname, MYENDE, is spelt incorrectly where
the writer of 'Annexure A' to the Applicant's affidavit
has signed the letter on
the final page thereof. The writer has spelt the
surname'MNYENDE'."
12/ . ...
Captain
12.
Captain Erasmus of the South African Police
at
Umlazi deposed that on 1 October 1984 he had an interview with the appellant's
mother Mrs Roseline Nokwenzani Myende in his office
where he obtained from her,
without telling her why he required it, a specimen of her handwriting and of her
signature. He also procured
a set of her palm and finger prints. Both the
specimen handwriting and signature and the palm and finger prints were sent for
analysis
and comparison with the handwriting and signature on the letter alleged
by the appellant to have been written by his mother. Warrant
Officer Pretorius,
attached to the S A Criminal Bureau in Pretoria, an expert examiner of disputed
documents, handwriting and typing,
13/.... deposed
13. deposed as follows:
"4. Na 'n noukeurige ondersoek en vergelyking het ek tot die bevinding geraak
dat die skrif op die brief en die monsterskrif deur
twee verskillende persone
geskryf is.
5. Ek het ook die genoemde brief behandel om die vingerafdrukke daarop sigbaar
te maak. Die vergelyking van die vingerafdrukke is
nie deur my gedoen nie."
The comparison of the finger prints was done
by
Warrant Officer Collier of the South African Police
stationed at the Finger
Print Office, Durban, who
stated the result of his investigation in his
affidavit
as follows:
"3. Op 1984-11-08 het ek h brief wat geadresseer is aan ene Bonginkosi Myende
ontvang.... Daar verskyn vingerafdrukke op die brief.
Ek het ook 'n. stel
geinkte vingerafdrukke met die naam Roseline Myende ....
ontvang.
14/.... 4. Ek het
14.
4. Ek het die vingerafdrukke op die brief vergelyk met die
geinkte vingerafdrukke en gevind dat dit nie identies is nie en deur
verskillende
persone gemaak was."
So much for the allegations in the papers.
The headnote in
S v de Jager
1965(2) SA
612(A)
reads as follows:
"The basic requirements for an application for the hearing of evidence on
appeal, or the more usual course of setting aside the conviction
and sentence
and sending the case back for the hearing of further evidence, are: (a) There
should be some reasonably sufficient explanation,
based on allegations which may
be true, why the evidence which it is sought to lead was not led at the trial;
(b) there should be
a
prima facie
likelihood of the truth of the
evidence; and (c) the evidence should be materially relevant to the outcome of
the trial. Non-fulfilment
of any one of these requirements would ordinarily be
fatal to the application."
Counsel are agreed that requirements (a)
and (c) have been met in the present case but
15/.... Mr Hutchinson
15. Mr Hutchinson, for the State, opposes the application
on the ground that the second requirement has not
been fulfilled. The
corresponding requirement to be
complied with in a proper case under s 316 of
Act 51 of 1977,is
couched in the following terms (see ss 3(a)):
"(a) That further evidence which would presumably be accepted as true, is
available."
In a fairly recent judgment in the
Cape
Provincial Division of the Supreme Court,
S v Stey
n
1981(4) SA 385, this requirement was fairly exhaustively
considered. Whatever the words
prima facie
or "presumably"
may
mean, I do not, in the present case, propose to
apply the test laid down. I agree with Mr Hutchinson
that on the papers, regard being had to the affidavits
of the appellant's mother and of the finger print and
16/.... handwriting
16.
handwriting experts, no
prim
a
facie
case has been made
out. However, in view of the special features of this case the members of this
Court have decided, without wishing
to create a precedent, and in spite of the
application, as it stands, failing the test referred to, to grant the
application. This
is a capital case. Neither the handwriting nor the finger
print experts have given reasons for their respective conclusions. The
appellant
might not have foreseen that his allegation that the letter had been written by
his mother would be properly investigated
and it may be that when confronted in
Court with properly substantiated
17/.... expert
17.
expert evidence, he would have no answer. Even so, although the dispute
raised on the papers does not, on the face of it, appear to
be a real or genuine
dispute, we take into consideration that
pro deo
counsel prepared the
application under adverse circumstances. Apparently, as far as we could
ascertain, the appellant communicated
with counsel by correspondence; counsel
had no proper opportunity to consult with the appellant; he did not have the
assistance of
an attorney; the circumstances under which the disputed letter was
received have not been revealed. Although it is difficult to conceive
in what
respect, if at all, further light other than what appears from the bald
assertion
made in the appellant's affidavit can be cast on the
18/ matter
18.
matter, there may be more behind the allegation than
meets the eye.
I must make it clear though that the
only issue which the Court
quo
will be called upon ,
to decide
initially is the authorship of the letter
in dispute; only in the event of the Court resolving
the issue in favour
of the appellant would the effect
of such finding on the outcome of the matter become
a further issue and such further evidence as may be
held to be relevant to the conspiracy alleged would
then be receivable.
In view of the special circumstances of this
case the application is granted and the following order
is made:
(a) The convictions and sentences of the appellant
on a charge of murder and a charge of possession
19/.... of a
19.
of a fire-arm without a licence are set
aside.
(b) The matter is remitted to the trial Court
(i) to hear
evidence by either party relating to the issue as to whether the disputed letter
was written by the appellant's mother;
(ii) in the event of the trial Court resolving the issue in favour of the
appellant, to hear evidence by either party on the issue
of the conspiracy
alleged in the said letter, and;
(iii) to consider such evidence, hear
argument thereon and give a decision
de novo
on all the evidence.
JUDGE OF APPEAL
BOTHA, JA )
) - CONCUR VIVIER, AJA)