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[2024] ZAECMHC 51
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Yoni v S (CA&R119-2022) [2024] ZAECMHC 51 (12 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