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[2009] ZAKZPHC 5
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Shezi and Another v S (AR 437/2008) [2009] ZAKZPHC 5 (12 March 2009)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(KWAZULU-NATAL, PIETERMARITZBURG)
APPEAL NO. AR 437/2008
In the matter between:
MLUNGISI
SHEZI
First
Appellant
VUSI PETROS
JILA
Second Appellant
and
THE
STATE
Respondent
JUDGMENT
(Delivered on 12 March 2009)
GORVEN J
[1]
On 8 September 2004 at just after 19h00, Morganathan Chetty was
driving a red Mazda 323 in Mountain Rise, Pietermaritzburg.
He drew
up at a traffic light behind another vehicle. A green Opel Kadett was
parked alongside with flashing hazard lights. Two
men emerged from
this vehicle. One approached his open driver’s window and
pointed what he described as a silver firearm
at him. He did not
notice their faces because he was in a state of shock. He was told to
get out of the Mazda. He did so as fast
as he could and fled directly
to the Mountain Rise police station which was some 250 metres away.
At the police station, a radio
alert was put out with the
description of the vehicle. Within an hour it was reported to
him by the police that the vehicle
had been recovered. He identified
the vehicle the following day and identified a radio/CD player as
having been in the vehicle
at the time.
[2]
Two members of the South African Police Service were on duty at the
time. They were parked in a car on the N3 southbound between
the
Lion Park and the Umlaas Road turnoff. They received a radio report
about the hijacking and approximately 15 minutes thereafter
noticed a
red Mazda 323 with the given registration number driving past on the
southbound carriageway. They each noticed two persons
inside. After
confirming the details of the vehicle with radio control they turned
on their blue light and siren in order to signal
that the vehicle
should stop. It had the opposite effect. The Mazda increased
its speed, swerved between lanes of traffic,
dodged the police
vehicle and made to force it from the road when it attempted to draw
alongside. It then made a sudden swerve
from the right hand lane to
exit at the Camperdown off-ramp. During the chase on the N3, the
passenger in the police vehicle, Constable
Rencken, fired two shots
at the tyres of the Mazda. The police vehicle followed and the Mazda
then spun out at the T-junction while
attempting to turn towards
Camperdown and came to a halt.
[3]
The police vehicle stopped 3 metres in front of the side of the Mazda
with its lights on bright. The two police officers
noticed the driver
holding what appeared to be a silver firearm in his right hand as he
gripped the steering wheel. The two occupants
of the Mazda emerged
from the vehicle and ran away in different directions. The two
policemen each chased one of the occupants.
Both shouted to them to
stop, both fired more than one warning shot and both then fired
at the fleeing occupants which wounded
them and caused them to stop.
The two occupants were the only people in the area and remained
within the sight of the chasing police
officers. They turned out to
be the first and second appellants with the second appellant having
been the driver. The first appellant
was wounded in his buttock and
the second appellant in his leg.
[4]
Inspector Wolfaard, who had chased the first appellant, found a
cellphone on the first appellant. A sharpened allen key
was found by
him in the underpants of the first appellant and was recognised by
him as an instrument commonly used to steal vehicles.
Constable
Rencken found a gate remote and a bunch of keys in the possession of
the second appellant. When the police officers caught
up with them,
each was warned of his rights and arrested. On their return to the
Mazda, the police officers found the radio/CD
player lying on the
passenger seat with CDs also lying on the floor. Inspector Wolfaard
also found a replica silver toy pistol
lying on the floor of the
Mazda by the driver’s feet which resembled what he had seen in
the driver’s right hand.
[5]
The appellants were each charged with one count of Robbery with
aggravating circumstances. The second appellant was, in
addition,
charged with contravening the provisions of section 63(1) read with
sections 1
,
63
(2),
63
(3),
69.73
,
89
(1) and
89
(5) of the
National Road
Traffic Act, No. 93 of 1996
in driving the red Mazda recklessly or
negligently with the alternative charge of driving without reasonable
consideration for
other road users.
[6]
The charge sheet mentioned the provisions of
Section 51
(2) and (3)
of the
Criminal Law Amendment Act, No 105 of 1997
in relation to the
robbery charge. The appellants were represented during the trial.
They each pleaded not guilty and elected not
to disclose the basis of
their defence. The provisions relating to minimum sentences were
explained to them by the magistrate.
They were both convicted of
robbery with aggravating circumstances. The second appellant was also
convicted of reckless driving.
The first appellant was sentenced to
imprisonment for a period of 10 years. The second appellant was
sentenced to a period of imprisonment
of 12 years on the robbery
charge and a period of 1 year on the reckless driving charge, the
latter to run concurrently with the
former. Both were declared unfit
to possess a firearm in terms of
section 103
of the
Firearms Control
Act, No. 60 of 2000
.
[7]
The version of the State was correctly accepted. That of the
appellants, to the effect that they were waiting for a bus
along with
many other pedestrians and fled when they heard gunshots from a
vehicle chase and were wrongly thought to be the people
from the
Mazda, was correctly rejected by the magistrate as being false beyond
reasonable doubt. The magistrate dealt fully with
the reasons why
this was so and I do not intend to repeat them. It is also clear
that, despite the fact that the State proved only
that a replica
firearm was used, the appropriate conviction was for robbery
with aggravating circumstances since there was
a threat to inflict
grievous bodily harm which meets the definition in section 1 of the
Criminal Procedure Act (S v Loate &
Others
1962 (1) SA 312
(A) at
320 C-D). However, in convicting them of robbery with aggravating
circumstances, the magistrate took into account one factor
which I
now deal with.
[8]
After Inspector Wolfaard had given evidence of the arrest of the
first appellant and of finding the cellphone and sharpened
allen key,
the following exchange took place:
PROSECUTOR Did accused 1 indicate as to why he was
running away from you? --- I questioned accused 1 Your Worship. After
informing
him of his rights, he made a report to me.
COURT You
questioned accused 1? --- That’s correct Your Worship, accused
1.
PROSECUTOR Yes? --- Your Worship, I don’t
know if I can say what the accused told me.
Your can tell the Court. ---Your Worship, he informed me
that they have just hijacked this vehicle from a(n) Indian male in
Pietermaritzburg,
Mountain Rise. He also informed me Your Worship,
that…(intervention).
Stop, before you go any further. Your Worship, it
appears that this witness is bringing out a confession.
COURT Yes.
PROSECUTOR I don’t know if the defence will object
to this witness continuing in this line.
MR
RAMCHARRAN Your Worship, no objection.
PROSECUTOR Okay you can proceed. --- Your Worship, he
also informed me that accused 2 was driving the vehicle, that he was
not driving
the vehicle. He also informed me that he did not possess
a firearm himself and he also informed me that …
(intervention).
Sorry …
(inaudible) (SPEAKING OFF-MICROPHONE).
COURT What
language did he speak? --- English Your Worship.
PROSECUTOR Yes? --- He also informed me that a third
person – they were dropped off by a third person with a green
vehicle,
came to Pietermaritzburg, dropped them off when they
hijacked the vehicle.
[9] A number of issues
arise from this exchange. First, does what the first appellant
said amount to a confession? Secondly,
if it does, should it have
been received in evidence? Thirdly, if not, what is the effect of the
magistrate having so received
it?
[10]
It is trite law that a confession is ‘an unequivocal
acknowledgment of... guilt, the equivalent of a plea of guilty
before
a court of law'.
[1]
It must therefore cover all the elements of the
offence with which an accused person
is charged and exclude
possible defences.
[2]
The fact that an accused had an exculpatory purpose in making the
statement is irrelevant in construing whether it amounts to a
confession. It must be objectively construed.
[3]
[11] When the first appellant spoke of having “hijacked
the vehicle” and that they had been “dropped off
when
they hijacked the vehicle”, can it be said that he admitted all
the elements of the offence with which he was charged?
What he meant
by the term “hijacked” was never explored but the context
shows that he meant a deprivation of another’s
property by
threat of force. Given the context of the confession, and in
particular with the first appellant having disavowed that
he
personally had a firearm, I am of the view that what he said amounted
to a confession.
[12]
The next question is whether this confession should have been
admitted by the magistrate in evidence. The point of departure
is
Section 217
of the
Criminal Procedure Act, No. 51 of 1977
. This
provides, in its material parts, as follows:
(1)
Evidence of any confession made by any person in
relation to the commission of any offence shall, if such confession
is proved to
have been freely and voluntarily made by such person in
his sound and sober senses and without having been unduly influenced
thereto,
be admissible in evidence against such person at criminal
proceedings relating to such offence: Provided-
(a)
that
a confession made to a peace officer, other than a magistrate or
justice, or, in the case of a peace officer referred to in
section
334
, a confession made to such peace officer which relates to an
offence with reference to which such peace officer is authorized to
exercise any power conferred upon him under that
section, shall not be admissible in evidence unless
confirmed and reduced to writing in the presence of a magistrate or
justice…
(3)
Any
confession which is under subsection (1) inadmissible in evidence
against the person who made it, shall become admissible against
him-
(a)
if
he adduces in the relevant proceedings any evidence, either directly
or in cross-examining any witness, of any oral or written
statement
made by him either as part of or in connection with such confession;
and
(b)
if
such evidence is, in the opinion of the judge or the judicial officer
presiding at such proceedings, favourable to such person.
[13] The present
confession was clearly made to a peace officer other than a
magistrate or justice. To be admissible it would,
therefore, in terms
of this section, need to be confirmed and reduced to writing in the
presence of a magistrate or justice. This
was not done. It follows
that it does not comply with the provisions of
section 217(1)
and
would not ordinarily be admissible. But, when the prosecutor quite
properly stopped the witness from testifying to the confession,
the
legal representative of the first appellant indicated that he did not
object to the evidence being led. He confined his attack
on the
confession to a denial that any such thing was said to Inspector
Wolfaard. This gives rise to the question whether the consent
of the
legal representative to the leading of evidence of an otherwise
inadmissible confession renders the confession admissible.
[14] The general principle was set out in
R v Perkins
.
[4]
Here, evidence of a confession made by the accused to a detective was
elicited in re-examination. It was allowed by the judge of
first
instance because evidence of the conversation of which the confession
formed a part was elicited by the accused in cross-examination.
The
judge considered that ‘the defence, by introducing the
statement by means of cross- examination, had forfeited the right
to
have such statement excluded’ but reserved this point as one of
two questions of law for decision by the Appellate Division.
Innes CJ
dealt with this approach as follows:
The Court applied the rule that a party may be held to
have waived his right to object to evidence, which he has himself
opened.
That of course is founded on the principle that a litigant
thus acting is regarded as having consented to the admission of
evidence,
to which he would otherwise have been entitled to object.
But I do not think that this rule, applicable as it is in civil
proceedings,
can be allowed to operate in a case like the present.
The terms of the statute are peremptory, - a confession made to a
peace officer,
other than a magistrate or Justice "shall not be
admissible in evidence under this section" unless confirmed and
reduced
to writing as prescribed. Such confession, the Legislature in
its wisdom has decreed, shall not be evidence at all, and an accused
cannot by his consent remedy the defect.
[5]
[15]
The section in
Perkins’s
case was couched in prohibitive
terms. Although the present section is couched in permissive terms,
providing a confession was made
freely and voluntarily, the import of
Perkins’s
case remains clear and binding. Of course,
since then,
section 217(3)
was enacted and provides for such a
confession to be admissible in two instances. Neither of these
applies to the present matter.
The confession should therefore have
been ruled inadmissible by the magistrate and excluded from the
record.
[16] What, then, is the effect of the magistrate having received it
in evidence? It was clearly an irregularity. However,
no
special entry was applied for or made in terms of
section 318
of the
Criminal Procedure Act. The
case has come before us on appeal. The
leave to appeal was limited by the magistrate to an appeal against
sentence. I am of the
view that
section 322
of the
Criminal Procedure
Act specifically
allows it to be dealt with in the present
circumstances. This section gives an appeal court a wide discretion
to deal with a possible
failure of justice, providing as follows:
(1)
In
the case of an appeal against a conviction or of any question of law
reserved, the court of appeal may-
(a)
allow the appeal if it thinks that the judgment
of the trial court should be set aside on the ground of a wrong
decision of any
question of law or that on any ground there was a
failure of justice; or
(b)
give such judgment as ought to have been given at
the trial or impose such punishment as ought to have been imposed at
the trial;
or
(c)
make such other order as justice may require:
Provided that, notwithstanding that the court of appeal
is of opinion that any point raised might be decided in favour of the
accused,
no conviction or sentence shall be set aside or altered by
reason of any irregularity or defect in the record or proceedings,
unless
it appears to the court of appeal that a failure of justice
has in fact resulted from such irregularity or defect.
The court’s general powers of review in terms of
section 304(4)
of the
Criminal Procedure Act would
also entitle this court to deal
with the matter. I am therefore disposed to deal with the matter
despite leave to appeal not having
been granted and in the absence of
a special entry.
[17]
The question whether inadmissible evidence arising from the consent
of, or absence of objection by, counsel for an accused
can be
attacked on appeal was
answered in the affirmative in
R v Noorbhai
.
[6]
In this case it was held that such consent ‘is a matter very
seriously to be taken into account when this Court is considering
the
question whether the irregularity complained of is in itself of such
a nature as to be capable of having adversely influenced
the jury’s
verdict…’
[18] What test should then be utilised on appeal? Does the
failure to exclude the confession vitiate the proceedings? In
S v
Gcaba
[7]
,
Harcourt J, sitting as a judge of first instance with two assessors,
considered what should take place when inadmissible evidence
of a
confession was led before him and the assessors. As in the present
matter the evidence came as “a considerable surprise”
to
the prosecuting counsel who indicated that he had no forewarning that
this evidence would be led by the investigating officer.
It was held,
on the facts of that case, that the trial could not continue before
the court as it was constituted and the proceedings
were quashed. In
arriving at this decision, however, Harcourt J found that the content
of the confession in that matter was destructive
of the defence
outlined in cross-examination relating to where the accused had
obtained the knife utilised in the offence. This
distinguishes it
from the present matter. It is also distinguishable on the basis that
in the present matter the magistrate did
not quash the charges but
proceeded with the trial.
[19]
A more comparable situation to the present one is found in the case
of
S v Gaba
.
[8]
Here the trial court had heard evidence of the contents of the
confession before disposing of the trial within a trial relating
to a
contested confession. Dealing with this situation Viljoen JA said the
following:
To sum up, therefore, I consider that the learned Judge
prematurely and irregularly received evidence of the contents of the
confession;
and that such irregularity entailed at least potential
prejudice for the appellant. But potential prejudice is not enough
for success
on appeal. The final question to be decided in this
regard is not whether the learned trial Judge committed an
irregularity which
might have led to a failure of justice; it is
whether a failure of justice has in fact resulted from the learned
Judge's ruling.
See
s 322
(1) (a) of the
Criminal Procedure Act 51 of
1977
. The test is whether the appellant was prejudiced. See
R
v Sassin
1919 AD 485
at 487;
R
v Rose
1937 AD 467
at 475 - 477.
[9]
9
[20]
Gaba’s
case was decided before the coming into effect of the
Constitution of the Republic of South Africa Act, No. 200 of 1993
(the Interim
Constitution) and the Constitution of the Republic of
South Africa, 1996 (the Constitution). The effect of the interim
Constitution
and the Constitution on the approach of the courts prior
to its coming into effect must therefore be considered. In
S v
Zuma and Others
[10]
10
,
Kentridge AJ dealt with the provisions of the interim Constitution.
He said:
The right to a fair trial conferred by that provision is
broader than the list of specific rights set out in paras (a) to (j)
of
the subsection. It embraces a concept of substantive fairness
which is not to be equated with what might have passed muster in our
criminal courts before the Constitution came into force. In S v
Rudman and Another; S v Mthwana
1992 (1) SA 343
(A) , the Appellate
Division, while not decrying the importance of fairness in criminal
proceedings, held that the function of
a Court of criminal appeal in
South Africa was to enquire
'whether there has been an irregularity or illegality,
that is a departure from the formalities, rules and principles of
procedure
according to which our law requires a criminal trial to be
initiated or conducted'.
A Court of
appeal, it was said (at 377),
'does not enquire whether the trial was fair in
accordance with "notions of basic fairness and justice", or
with the "ideas
underlying the concept of justice which are the
basis of all civilised systems of criminal administration".'
That was an authoritative statement of the law before
27th April 1994. Since that date s 25(3) has required criminal trials
to be
conducted in accordance with just those 'notions of basic
fairness and justice'. It is now for all courts hearing criminal
trials
or criminal appeals to give content to those notions.
[11]
This reasoning has equal application to the
Constitution despite the different wording in the relevant section.
[21]
In
S v Felthun
[12]
,
Vivier JA referred to two possible results which may arise from
irregularities in a trial:
As to the question whether there has been a failure of
justice, this Court has in a number of decisions recognised that in
an exceptional
case the irregularity may be of such a kind that it
per se results in a failure of justice vitiating the proceedings, as
in S v
Moodie
1961 (4) SA 752
(A) and S v Mushimba en Andere
1977 (2)
SA 829
(A). Where the irregularity is not of such a nature that it
per se results in a failure of justice, the test to be applied to
determine
whether there has been a failure of justice is simply
whether the Court hearing the appeal considers, on the evidence (and
credibility
findings, if any) unaffected by the irregularity or
defect, that there is proof of guilt beyond reasonable doubt. If it
does so
consider, there was no resultant failure of justice (per
Holmes JA in
S v Tuge
1966 (4) SA 565
(A) at 568F - G; and see
also
S v Xaba
(supra at 736A - B) and
S v Nkata and Others
1990 (4) SA 250
(A) at 257E - F).
[22]
The test was somewhat more broadly applied in
S v Molimi
[13]
where Nkabinde J said:
Having concluded that the evidence of the confession and
hearsay remains inadmissible against the applicant, the question
remains
whether his conviction ought to be upheld on the remaining
admissible evidence…
[23]
Molimi’s
case does not set
out the principles to be applied nor does it contradict those laid
down in
Felthun’s
case. It is my respectful view that
the use of the phrase “unaffected by the irregularity or
defect” is preferable to
an approach which simply excises the
inadmissible confession and assesses the remaining admissible
evidence. This is because the
remaining admissible evidence may be
affected, and thus tainted, by the inadmissible evidence.
[24]
In the present matter, the irregularity is not of the first kind
referred to in
Felthun’s
case, namely one which per se
results in a failure of justice. This is due to the conclusive nature
of the admissible evidence in
the trial entirely unaffected by the
confession. It is my view that, in the present matter, such evidence
does amount to “a
complete mosaic” which clearly
justifies the conviction of the appellants. Given the fact that
no evidence rested on
the confession or was obtained as a result of
it and the clear and incontrovertible chain of evidence linking the
two appellants
to the robbery, I cannot conceive that any failure of
justice resulted from the irregular receipt of this evidence. In the
event,
the appeal against the conviction on the charge of robbery
with aggravating circumstances must fail.
[25]
Likewise, there would be no merit in any appeal of the second
appellant against his conviction on the second charge faced
by him
alone. The State proved beyond reasonable doubt that he drove the red
Mazda recklessly.
[26]
As to sentence, the magistrate took into account the personal
circumstances of the appellants, the nature of the offence and
the
interests of the community. He distinguished between the two
appellants on the basis of the second appellant’s previous
conviction for theft committed in 2003. He did not impose the minimum
sentences prescribed by Act 105 of 1997 on the charge of
robbery with
aggravating circumstances despite not specifying what he regarded as
substantial and compelling circumstances. The
magistrate did not
misdirect himself in any respect. The sentences can hardly be
said to be startlingly inappropriate, especially
in the light of the
minimum sentencing provisions which apply to the main charge. There
is therefore no basis on which this
court is at liberty to
interfere with the sentence imposed. Even if there were such a basis,
I would not have imposed any lesser
sentences.
[27]
In the result the appeal of each of the appellants against conviction
and sentence is refused.
MARNEWICK AJ
[1]
R v Becker
1929 AD 167
at 171.
[2]
S v Yende
1987 (3) SA 367
(A) at 372 D-E.
[3]
S v Msweli
1980 (3) SA 1161
(D) at 1162 G-H; S v Yende (supra) at
374 C-D.
[4]
1920 AD 307.
[5]
at p310.
[6]
1945 AD 58
at 67. See also R v du Preez
1943 AD 562
at 580.
[7]
1965 (4) SA 325 (N).
[8]
1985 (4) SA 734 (A).
[9]
at p750.
[10]
1995 (2) SA 642 (CC).
[11]
at para [15].
[12]
1999 (1) SACR 481
(SCA) at p485i – 486b.
[13]
[2008] ZACC 2
;
2008 (3) SA 608
(CC) at para
[51]
.