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[2024] ZAECMHC 48
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Yoni v S (CA&R 119/2022) [2024] ZAECMHC 48 (10 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Case No. CA&R 119/2022
Regional Court Case No. RCB 2121
Heard on: 19 February 2024
Date delivered: 10 June 2024
In
the matter between:
DANISILE
LUCAS YONI
Appellant
And
THE
STATE
Respondent
JUDGMENT
MAJIKI
J:
[1]
The appellant was charged with and convicted of offences relating to
the murder of
his partenal nephew, his brother’s wife’s
two year old son (the deceased). He pleaded not guilty to three
counts,
murder, rape and defeating the ends of justice. Despite
the fact that in the counts of murder and rape, the state invoked
the
provisions of section 51(1) of
Criminal Law Amendment Act 105 of 1997
he was found guilty with
section 51(2)
in the count of murder.
He was sentenced to fifteen (15) years, life imprisonment and ten
(10) years respectively.
All the sentences were ordered to run
concurrently with the life sentence in the count of rape. The
appellant appeals against
conviction, the respondent opposes the
appeal and supports the conviction.
[2]
The grounds of appeal are summarily that the appellant’s right
to a fair trial
was violated. The magistrate was biased; he
descended the arena. Despite the fact that the appellant’s
attorney
recorded that instructions were not to disclose the basis of
his defence, the court insisted that she makes some admissions.
Further, the trial within a trial to determine the admissibility of a
confession allegedly made by the appellant was unprocedural.
BACKGROUND
[3]
On the date of the incident the deceased was playing with other
children at the appellant’s
parental home. The deceased
went missing. He was recovered from a nearby river already
dead, he had also been raped
anally. Seven members of the
community confronted the appellant and he admitted that he killed the
deceased.
[4]
The conduct of the magistrate during the hearing is disconcerting,
and requires some
scrutiny. It is for that reason that the
evidence is restated to a great extent.
TRIAL
PROCEEDINGS
[5]
During the plea proceedings when the appellant’s legal
representative explained
that the appellant was reserving the outline
of his defence, the magistrate stated:
‘
as
much as I respect the election of the accused, but when he just say
that he reserve[d] the basis of his defence, he then puts
the state
in a position where it has to prove whether the accused knows the
victim in this matter, whether they met all, there
are so many
questions that have to be answered, and it has the effect of wasting
valuable time … I think it is just
the effects of that,
because we start from scratch, trying to link the accused with the
alleged victim, and I observe that for
instance, the alleged victim
has the same surname with the accused’.
The
magistrate explained that the process was not to get the appellant to
implicate himself but was meant to minimise the issues.
[6]
The appellant’s legal representative then recorded that the
appellant knew the
deceased; in the afternoon of the day of the
incident the deceased was left with the appellant at the latter’s
parental home,
playing with other children; the appellant left for
his own homestead; on the next day he was confronted about the
missing deceased;
he did not know what had happened to the deceased
and never saw the deceased again; he knew nothing about the rape or
death of
the deceased.
[7]
In proving its case the state called four (4) witnesses, three (3)
witnesses testified
about the admission made by the appellant to the
members of the community. The other witness testified in
relation to a confession
allegedly made by the appellant.
[8]
Mr Ntabela’s evidence about the admission was led without
objection from the
appellant’s legal representative, despite
the fact that the appellant allegedly incriminated himself.
According to
the witness he was the brother of the appellant’s
father, the appellant was therefore his son. He said he and the
deceased’s
mother realised around 13h00 that the deceased was
missing. The deceased was not able to walk for long alone.
Upon
that realisation people, elders and women were called to his
family home. The deceased’s mother reported that when the
appellant was called to the gathering, he said he was tired and was
sleeping. Seven men were subsequently appointed to investigate
the matter and confront the appellant. Without any force used
or threats, the appellant admitted that he killed the deceased.
He, as the appellant’s father, suggested to the appellant that
he hands himself to the police. The appellant did that.
[9]
Mr Ntabela only mentioned that the appellant admitted that he raped
the deceased in
cross examination. However, he became very confused
when that was interrogated further in re-examination. He also
said he
did not remember accompanying the appellant to a traditional
doctor in Mzamba suffering mental disturbance (sic). He denied
that he attended a gathering together with the appellant and a
traditional healer, where the appellant was made to admit the
offences.
[10]
The two other witnesses on the aspect of admission, Messrs Ntozakhe
and Ndlungwane confirmed
that the appellant admitted that he killed
the deceased and threw him in the river, without being forced or
threatened. The
one witness was among the seven men that
confronted the appellant. The other witness is the
sub-headman. He said the
questioning of the appellant was part
of their investigation as to what happened to the deceased. It
took place in his homestead.
They confronted him because as the
deceased’s close relative, he did not participate in the search
of the deceased.
He also used to carry the children on his
back.
[11]
During the cross examination of Mr Ntozakhe it was suggested that the
appellant made the admission
after, his explanation that he failed to
attend the first meeting because he was tired, was not accepted.
He felt cornered
and decided to admit for the sake of admitting.
The witness was adamant that the appellant was even in a sitting
position
when the spoke, he was not forced. The issue of the
alleged admission will be reverted to during the analysis of the
evidence.
[12]
Captain Nzimakhwe from Port Edward, KwaZulu Natal confirmed that he
obtained a confession statement
from the appellant at Mzamba police
station. Again there was no objection to the leading of the
evidence of the confession.
There seems to be no concern in the
manner in which that process was undertaken. The appellant
confirmed that he never told
Captain Nzimakhwe that the police told
him what to say, that he was tortured and that he was threatened. No
questions were
asked on behalf of the appellant. Instead the
prosecutor said he was closing the state case in respect of the
statement.
[13]
After Captain Nzimakhwe’s evidence was led and was about to be
called upon to read the
statement, the appellant’s legal
representative informed court that she intended to call the appellant
to answer. In
a strange turn of events the magistrate said “we
are already in a trial within a trial, ask questions from the witness
…
aimed to show the circumstances under which the statement
was taken”.
[14]
The appellant testified regarding the statement. He confirmed
that he was tortured by being
assaulted and suffocated with a latex
glove in order to agree to make a statement. He was further
threatened that he should
not disclose that he was tortured.
The police told him what to say in the confession, the police
threatened to kill him upon
return from the cells, if he did not
record what they told him. Despite the fact that his evidence
in cross-examination was
not so clear. He repeated that the
contents of the confession were dictated to him by police from stock
unit in Mzamba.
He also said that he had no knowledge about the
retrieval of the body of the deceased.
[15]
The magistrate’s reasons in his judgment in the trial within a
trial emphasized that the
appellant did not tell Captain Nzimakhwe
that he was tortured and assaulted. He said the bold statement
and description of
how the assault unfolded, without evidence to back
it up, cannot lead to the court’s rejection of the statement.
He
may have heard about how assaults are perpetuated from other
people or he got it from a movie.
[16]
The magistrate ruled that the statement was admissible. Before
the statement was read into
the record, the magistrate asked the
legal representative if she had objection in the statement being
admitted to which she said
she had none.
[17]
The appellant testified in his defence in the main case. He
said he was confronted by members
of the community about why he threw
the deceased’s body in the river. He denied those
allegations. He eventually
admitted because he was scared that
he would be assaulted. They said the deceased had missing body
parts. He made a
confession because he had been tortured by the
police. He then learnt from the police that the deceased had no
missing parts
but was raped.
[18]
The issue for the appeal is whether cumulatively, on the grounds
regarding how the trial was
conducted resulted in an unfair trial to
the appellant.
[19]
For reasons that will become apparent below the sequence in dealing
with issues will be to address
the plea outline, confession and
finally the admissions.
EVALUATION
OUTLINE
OF PLEA
[20]
The magistrate insisted that the appellant discloses the basis of his
defence, despite the appellant’s
clear indication that he
wanted to reserve it. In his judgment the magistrate among
others, formulated the basis of his inferential
reasoning on the fact
that the appellant had been with the deceased before his
disappearance. This emerged from the plea
statement only. The
evidence, as also correctly recorded by the magistrate, was that Mr
Ntobela saw the appellant at the appellant’s
parental home,
where the deceased was, before the deceased disappeared.
[21]
Section 115 of the Criminal Procedure Act 51 of 1977 (the CPA)
provides:
‘
(1)
where an accused at a summary trial pleads not guilty to the offence
charged, the presiding judge,
regional magistrate or magistrate, as
the case may be, may ask him whether
he wishes
to make a
statement indicating the basis of his defence.
2
(a) where an accused does not make a statement
under subsection (1) or does so and it is not clear from the
statement to what extent he denies or admits the issues raised by
plea, the court may question the accused in order to establish
which
allegations in the charge sheet are in dispute.’ (emphasis
mine).
[22]
From what the magistrate asked, he does not appear to have given the
appellant any option but to make the plea
explanation. In
S
v Moloyi
1978 (1) SA 516
(O) 520 E it was held that the
questioning in terms of section 115 can only be used for a limited
purpose, namely the determination
of the nature and extent of the
dispute as opposed to enquiries concerning facts in proof of the
issues. Herein, that the
appellant was with the deceased falls
on the facts that, if not formally admitted, the state had to prove.
Only one witness
testified that the appellant was seen at the
homestead where the deceased was, before his disappearance. There was
no evidence
that he was with the deceased.
In
S v Eke
2016 (1) SACR 135
at paragraph 31 the full court
explained the status of a plea explanation. The court stated:
‘
Bhamjee’s
case (
S
v Bhamjee
1993 (1) SACR 62
7W) and cases cited in it do not hold
that a plea explanation is
evidence. Indeed, MJ Strydom J stated that what the accused 'said in
his explanation of plea is not evidence'
but a 'disclosure of what he
is putting in issue'. What these cases say is no more than that
a plea explanation is evidential
material because it is an
unsworn statement made by an accused in which he or she
discloses what is in issue between him or
her and the state. MJ
Strydom J summed the position up by stating that in cases in which an
accused does not testify, while
a plea explanation 'is not on the
same footing as evidence having been given on oath', it should
nonetheless be considered 'in
finally deciding whether the state had
proved its case beyond a reasonable doubt'.
(brackets mine)
[23]
In this court’s view it was irregular for the magistrate to
insist on details of a plea explanation that
go beyond the nature and
extent of the dispute, moreso, after the appellant had exercised his
choice to the contrary. Further,
in his inferential reasoning
he considered the statement that the appellant was with the deceased
as a fact. However, I do
not agree with the appellant that such
irregularity was an indication of bias. It is also not of such
magnitude so as to
vitiate the proceedings. This court will
have to evaluate the evidence afresh to its exclusion.
ADMISSIBILITY
OF THE CONFESSION
[24]
With regard to confession the prosecutor recorded that the state was
to lead such evidence. The appellant’s
legal
representative was ill-advised by failing to object to such evidence
and by not to challenging the evidence relating to circumstances
surrounding the minuting of the statement. The record of the
proceedings after the state indicated that it was applying for
the
statement to be read into the record reads:
‘
COURT
:
Ms Mzamo?
MS
MZAMO :
Your Worship. I wish to call the accused person to
answer.
COURT
: Sir,
MS
MZAMO :
[Indistinct]
COURT
: We are
already in a trial-within-a-trial, ask questions from the witness.
You must remember that the questions are aimed to show
that the
circumstances under which the statement was taken.
MS
MZAMO :
As the Court pleases.
MS
MZAMO :
Sir, the accused person is disputing that he made a
statement?
COURT`
: Okay,
we are
not intending to go back, because on the basis that you said
you had no questions, the State closed the State case we cannot go
back to you then, in order to find your indication that you have
question.
MS
MZAMO :
Thank you, Your Worship. Your Worship, I am requesting
to –
opening of the short examination, Your Worship, …[intervenes].
MS
MZAMO
CROSS-EXAMINATION
COURT
: Are you
okay?
MS
MZAMO :
No, it is just that we have been through this procedure
before, that
if there is questions around the taking of the statement, then you
ask those questions, with a view to show that there
are some
abnormalities in the manner, in the manner in which the statement was
taken, now you seem to be confused, that is why
I am asking that
because you – because you have all of this since …
[inaudible] one of them. So your instructions
are to – if
I may understand, your instructions are to ask the witness questions?
MS
MZAMO
:
Yes
COURT
:
Regarding how the statement was taken?
MS
MZAMO
:
Regarding the issue of statement.
COURT
: Right,
no problem at all.
MS
MZAMO
:
Sir,
according to my instructions, he did not make the statement freely
and voluntarily.
MR
NZIMAKHWE :
I am disputing that, he was never forced
by anybody.
COURT
: Yes.
MS
MZAMO
:
He was
told what to say to you, that was not done by himself.
MR
NZIMAKHWE: I first asked – I first asked him that
and his response was that he was never forced by anybody
to make a
statement and that is what he was about to tell me, is something that
he had earlier told his community, which I did
not know.
MS
MZAMO
:
Thank
you, Your Worship, no further questions.
COURT
: Any
re-examination Mr Vinindwa?
PROSECUTOR
: No
re-examination,
Your Worship.)
[25]
The appellant’s confirmation of what Captain Nzimakhwe
testified about, that he never told
him about assault, threat and
police dictation of what he should say was correct. However,
there was no opportunity for the
appellant to place those allegations
to the alleged police officers. The state did not place
its version as to what
happened before the appellant was taken to
Captain Nzimakhwe. As matters stand, albeit belatedly, there is
a record of the
appellant’s evidence, testifying about being
tortured in detail and dictated to as to what to say. There was
no basis
for the court
a quo
to make the finding that what he
said was not true. No contrary version was placed before court
to evaluate the appellant’s
version, of involuntariness in
making the confession, against. The magistrate speculated that
the appellant may have heard
from other people about how the police
perpetrated tortures.
[26]
Over and above the requirements of section 35(5) of the Constitution
of the Republic of South
Africa,1996, the court must be satisfied
that the statement was made freely and voluntarily in his sound and
sober senses.
Indeed, the legal representative did not place
the appellant’s version timeously. Nevertheless, at the
stage she raised
it, the court could still properly entertain it and
let the state consider its position regarding how it would deal with
it.
The confession cannot be said to have been regularly
admitted in the circumstances. The court
a quo
erred in
finding that it was freely and voluntarily made. The confession
ought not to be admitted as evidence against the
appellant.
THE
ADMISSION
[27]
The circumstances relating to the evidence of the three (3) witnesses
about the admissions differ.
Despite the fact that the
appellant did not object to the leading of such evidence, the said
witnesses were asked questions relating
to the appellant’s
version about involuntariness of the making of admission. The
magistrate astutely summarised the
evidence of the three (3)
witnesses. The effect of that evidence being that the appellant
admitted to killing the deceased
by strangling him. Further, he
correctly analysed the circumstantial evidence, except for the
inclusion of what flowed from
the plea explanation. This court
will disregard the facts around the appellant having been with the
deceased, in its evaluation
of the evidence.
[28]
The circumstantial evidence to which the inferential reasoning ought
to apply to is summarised
below. That the appellant was seen by
Mr Ntombela at his parental home before the deceased disappeared; the
deceased was
at the said homestead before his disappearance; the
deceased could not walk for some distance on his own and that after
he disappeared
the appellant did not come when he was called to a
meeting about the deceased’s disappearance, despite his known
fondness
of the children.
[29]
Further, the post-mortem report indicated that the deceased’s
death was caused ‘asphyxia
(respiratory arrest) caused by
airway compression caused by manual suffocation’. The
appellant admitted to killing
the deceased by strangling him.
The magistrate correctly applied section 219 A of the CPA regarding
extra judicial admissions.
His finding that the admissions were
voluntarily made cannot be faulted. The court
a quo
also
correctly applied the two cardinal rules of logic as enunciated in
R
v Blom
1939 AD 188
at 202-203 applicable in reasoning by
inference, which are:
‘
1.
The inference sought to be drawn must be consistent with proved
facts. If not
then the inference cannot be drawn.
2.
The proved facts should be such that they exclude every reasonable
inference
from them, save the one sought to be drawn’.
[30]
In this court’s view the approach by the magistrate and his
reasoning is correct. The cause
of the deceased’s death is
consistent with the explanation by the appellant in his admission.
In the light of this
evidence and the circumstantial one, the version
by the appellant that he did not kill or admit to killing the
deceased could not
be reasonably probably true. Further, his reasons
for admission to the community differed. The version that was
suggested
to the witnesses was that he felt cornered when he was not
believed. When he testified, he said he feared that he was
going
to be assaulted. The only reasonable inference to the
facts together with his admission prove that he did kill the
deceased.
[31]
The appellant did not admit the rape of the deceased. However,
considering that the deceased
was raped before being killed, it is
not probable that a two year child who could not walk for long on his
own could have been
raped by a different person and subsequently meet
his death in the hands of the appellant. The only reasonable
inference
that could be drawn is that the appellant raped the
deceased and thereafter killed him to cover up what he had done to
the deceased.
[32]
This court is of the view that, even without the confession there is
sufficient evidence to sustain
the conviction of the appellant for
the crimes he was charged with.
In the result,
1.
The appeal is hereby dismissed.
B
MAJIKI
JUDGE
OF THE HIGH COURT
I
agree
D
PITT
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Appellant’s counsel:
Mr X Babane
Instructed by:
Legal Aid South Africa
Mthatha Local Office
No. 96 PRD Building
Sutherland Street
MTHATHA
Respondent’s Counsel:
Ms Mazamisa
Instructed by:
Director of Public Prosecutions
Broadcast House
Fort Gale
MTHATHA