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1989
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[1989] ZASCA 144
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S v Mnyamana and Another (43/88) [1989] ZASCA 144 (20 November 1989)
Case no 43/88 /MC
IN THE SUPREME COURT OP SOUTH
AFRICA
(APPELLATE DIVISION)
Between:
NICO LEDUBE MNYAMANA
First Appellant
MENZI TAFANI
Second Appellant
- and -
THE STÁTE
Respondent
CORAM:
CORBETT CJ et SMALBERGER,
VIVIER, EKSTEEN JJA et FRIEDMAN AJA.
HEARD:
3 NOVEMBER 1989.
JUDGMENT DELIVERED:
3 NOVEMBER 1989. REASONS FILED: 20 November
1989.
REASONS FOR JUDGMENT.
2/...
2.
FRIEDMAN AJA:
On 3 November 1989 the appellants' appeals were upheld and their convictions
and sentences set aside. The Court indicated that its
reasons would follow.
These are the reasons.
The two appellants were charged together with three
co-accused in the Queenstown Circuit Court of the Eastern Cape Division, with
the murder of one Maqanda Gxalaba ("the deceased"). For convenience I shall
refer to the appellants as they were described in the
Court a
quo
viz as
accused Nos 1 and 2 respectively, and similarly to their co-accused as accused
Nos 3, 4 and 5 respectively. Despite their
pleas of not guilty, all the accused
were found guilty
3/...
3.
by the Court a q
uo
(SOLOMON AJ and assessors). In the case of accused
Nos 1 and 2 no extenuating circumstances were found and they were accordingly
sentenced to death. In the case of the remaining accused, sentences of
imprisonment were imposed. Leave having been granted by the
trial court accused
Nos 1 and 2 appealed to this Court against their convictions and sentences..
They thereafter made an application to the
Eastern Cape Division for two special entries to be
made on the record in terms of sec 317 of the Criminal
Procedure Act no 51 of 1977. The special entries
which they sought read as follows:
"The First and Second Appellants (the First and Second Accused in the above
Honourable Court) both suffered grave, irreparable and
4/...
4.
substantial prejudice in the course of the proceedings in the above
Honourable Court, due to the irregularity during their Trial in
that in the
course of the hearing and after the conclusion of the evidence of each of the in
camera witnesses for the State, namely
'X' and 'A', the Court prior to hearing
all of the evidence in the case, discharged each of the State witnesses from
prosecution
in terms of the Provisions of Section 204 of Act No. 51 of 1977.
The First and Second Appellants (the First
and Second
Accused in the above Honourable
Court), both suffered grave, irreparable
and
substantial prejudice in the course of the
proceedings in the above
Honourable Court due
to an irregularity during their Trial in that
the
assessors Mr O.L. Oosthuizen and Mr
J.A.F. Nel were not sworn in as assessors
and
consequently the Court was not properly
constituted."
5/,..
5 .
The first special entry was granted by VAN RENSBURG J, but the second special
entry was refused. A petition to the Chief Justice for
leave to have the second
special entry made, met with a similar fate.
Despite the fact that there was
no special entry on the record with regard to the alleged irregularity as to the
swearing in of the
assessors, appellants' counsel sought to argue that the
irregularity was apparent from the record and that it
was open to him to take
the point. He based this on
the fact that there was nothing on the record to
indicate that the assessors had in fact been sworn in. T-his argument is
unsound.
There is no provision in Act 51 of 1977 to the effect that the fact
that assessors have been sworn in must be recorded on the record.
The fact that
the record contains no
6/...
6.
reference to the assessors having been sworn in, does
not constitute even
prima facie
evidence that they have not been sworn in. There is
accordingly no basis on which it could be found that an irregularity occurred
in
regard to the swearing in of the assessors. Before dealing with the special
entry arising
from the alleged premature discharge of the two State
witnesses, it. will be convenient to refer briefly to the facts.
The State case was that the deceased met his
death on the night of 2 January 1986 in the Sandbult location at Burgersdorp
in the district of Albert by what has generally become
known as a necklace
murder, and that the five accused jointly participated in this unlawful killing.
The two State witnesses were
Carswell Funo and Eric Bangani. (At the trial they
were
7/...
7.
referred to respectively as "X" and "A" as the trial court had ordered that
their identity was not to be disclosed.) They both testified
to having been
eye-witnesses to the assault upon the deceased. They were both described by
SOLOMON AJ as guasi accomplices, presumably
because of their evidence that they
had not voluntarily participated in the activities which led to the death of the
deceased but
had done so by reason of the fear of reprisals should they have
refused to do
so.
Both Funo and Bangani testified that the deceased had
been taken out of a house, that he had been assaulted, that stones had been
thrown at him, that he had been stabbed in his side by one of the accused, that
a motor car tyre had been placed over his body, that
petrol and/or paraffin had
been poured into
8/...
8.
the tyre which had then been set alight. As will appear presently, the two
so-called quasi accomplices contradicted each other on
fundamental issues and in
addition, there were conflicts between the evidence which each gave in chief
compared with their evidence
under cross-examination.
Funo was, before testifying, warned by SOLOMON AJ in terms of sec 204 of the
Act. At the conclusion of his evidence SOLOMON AJ enquired
of the
prosecutor when the witness should be given his
discharge from prosecution and whether the State had
any objection to his being discharged. The prosecutor having indicated that
he had no objection, SOLOMON AJ instructed the interpreter
as follows:
"Tell the witness that he is discharged from prosecution in
this case under the provisions
9/...
9.
of Section 204(2)(a) and that the discharge will be noted on the record of the
proceedings."
Bangani was similarly warned in terms
of sec 204 before he commenced his evidence and when he had concluded his
evidence, SOLOMON
AJ again asked the prosecutor whether he was satisfied that a
discharge should bë granted and having been given the necessary
assurance
by the prosecutor, SOLOMON AJ instructed the interpreter as follows:
"Tell the witness that he has now completed his evidence, and in the opinion of
the Court he gave his answers frankly and honestly
and I accordingly direct that
he is discharged
from prosecution..."
Section 204(1) of
the Act obliges the court,
10/...
10.
when it is "inf ormed by the prosecutor that he intends to call as a witness
on behalf of the prosecution a witness who will be required
to answer questions
which may incriminate him to warn the witness that he is obliged to give
evidence and to answer any question
put to him notwithstanding that the answer
may incriminate him. The court is further obliged to inform the witness in terms
of sec
204(1) (a)(iv) "that if he answers frankly and honestly all questions put
to him, he shall be discharged from prosecution ....".
Sec 204(2) provides that
if the witness "in the opinion of the court, answers frankly and honestly all
questions put to him" such
witness shall be discharged from prosecution and the
court shall cause such discharge to be entered on the record of the
proceedings.
The question whether it was an
11/...
11.
irregularity for a judge to grant an indemnity to a witness in terms of the
equivalent section under the previous Criminal Procedure
Act no 56 of 1955, at
the conclusion of that witness's evidence, was raised, but not decided, in two
cases which came before this
Court in 1958. In
R v McMillan & Another
1958(4) SA 461(A) a special entry was made on the record to the effect that the
proceedings were irregular and prejudicial to the
accused in that the presiding
judge had in terms of sec 254 of Act 56 of 1955 discharged an accomplice from
prosecution during the
Crown case and before hearing all the evidence. HOEXTER
JA, in delivering the judgment of the Court, stated at 469 F-G:
"Assuming, without deciding, that the learned Judge-President acted irregularly
in granting a discharge to the accomplice Nyovana
before
12/...
12.
the end of the trial, it seems to me that the second appellant suffered no
prejudice by reason of this irregularity."
Sec 254
of Act 56 of 1955 provided that if the witness "fully answers to the
satisfaction of the Court ....", a discharge from prosecution
shall be granted
to such witness. The words "fully answers" import the idea that the witness's
answers are "frank and honest". (See
R v Nxumalo
,
1939 AD 1
at 4, which
was quoted with approval by HOEXTER JA in
McMillan
's case.)
In
R v Moompotshe & Another
1958(4) SA 471(A), where the trial
judge had granted an accomplice witness a discharge from prosecution at the
conclusion of her
evidence, the point was taken that such discharge had been
premature. The court found it unnecessary, however, to deal with the point.
13/...
13.
This question has arisen under the present Act in two reported decisions in
the Provincial Divisions. In
S v Dlamini
1978(4) SA 917(N) MILNE J, with
whom JAMES JP concurred, stated at 920 B:
"It seems clear that it is undesirable for the discharge to be given at a stage
before, at any rate, all the witnesses have testified
and argument has been
heard, since it might well indicate that the magistrate has prematurely come to
a conclusion as to the credibility
of the witness so
discharged."
The learned judge went on, however, to
point out that had that been the only criticism of the manner in which the-
matter was approached,
it would not, in his view, have been sufficient to
warrant a conclusion that there had been a failure of justice. This dictum was
approved in
S v Lubbe
1981(2) SA 854(C) but the court
14/...
14.
there held that, in the circumstances of that case, the appellant had not
been prejudiced and his appeal was dismissed.
In my view it amounts to an
irregularity for a court to grant a witness a discharge from prosecution in
terms of sec 204(2) before
the conclusion of the case. Before such a discharge
may be granted the court is required to be of opinion that the witness has
answered
frankly and honestly all questions that have been put to him. This
involves an assessment of the
witness's evidence and a decision by the court
that the witness has been frank and honest. A witness may of course be honest,
but
mistaken. However, a finding that he has been honest is fundamental in
regard to the ultimate determination of that witness's credibility.
The making
of a finding such as this before hearing the
15/...
15.
rest of the- evidence, precludes the court, for the purposes of this finding,
from comparing such a witness's evidence with that of
others who might be called
to testify in regard to the same facts.
Ultimately the court has to determine
whether, on all the
evidence, a conviction of the
accused is justified. By granting a discharge
to an
accomplice at the completion of his evidence, the court
not only gives the wrong impression to the accused who might feel that the
court is prejudging the issue, but
granting a discharge at that early stage without a
proper evaluation of the witness's evidence in the light of all the other
evidence that might be adduced, could well have a detrimental
effect on the
court's own thinking.
The fact that the Act makes no provision for the withdrawal of a discharge,
once it has been granted
16/...
16.
by the court, is an indication that it was not
contemplated that it should
be given until the end of
the case. In
Mpomootshe
's case
supra
SCHREINER, JA
stated at
475 C-D that it was "not clear in what
situations the power of withdrawal of
a discharge may
be exercised". This was because, according to
SCHREINER,
JA, "the two sub-sections of the procedure
at a preparatory examination and
the procedure at a
trial" had been compressed into one section
(section
254(1) of Act 56 of 1955). That compression no longer
appears in the present Criminal Procedure Act which
provides explicitly in section 204(3) that a discharge given at a preparatory
examination shall be of no legal force or effect if
the witness concerned does
not at the subsequent trial answer, in the opinion of the court, frankly and
honestly all guestions put
to him at
17/...
17.
such trial. The section does not however, make any provision for the
withdrawal of a discharge granted at a trial which was not preceded
by a
preparatory examination.
For these reasons I am of opinion that the learned judge's granting of a
discharge to each of the accomplices when he did, was premature,
and amounted to
an irregularity. It does not follow from this, however, that the proceedings
must necessarily be vitiated.
Irregularities in a criminal trial fall into
two categories : those which are of so gross a nature as per se to vitiate the
trial
and those of a less serious or fundamental nature which do no per se have
that effect. In regard to the latter category the
18/...
18.
court will,'on appeal, itself assess the evidence and "decide for itself
whether, on the evidence and the findings of credibility
unaffected by the
irregularity or defect, there is proof of guilt beyond reasonable doubt": per
HOLMES JA in
S v Tuge
1966(4) SA 565(A) at 568 B. See also
S v
Naidoo
1962(4)SA 348 (A) at 354 D-F and
S v Mkhise & Others
1988(2) SA 868 (A) where it was stated" with reference to the categorisation of
irregularities at 872 F-G:
"As the decisions in our law on the nature of
an
irregularity bear out, the enquiry in each
case is whether it is of so
fundamental and
serious a nature that the proper
administration of justice
and the dictates of
public policy require it to be regarded as
fatal to
the proceedings in which it
occurred."
19/...
19.
I do not consider that the irregularity in the present case is one which can
be categorised as fatal. It would therefore normally
be necessary to decide
whether, despite the irregularity, the accused's guilt has been established
beyond reasonable doubt. It is,
however, unnecessary to consider the effect of
the irregularity since on the evidence in the present case the conviction of the
accused
cannot be supported,
The State case rested on the evidence of the
two accomplices. There were, however, glaring
discrepancies between their respective versions of the
killing and the events leading up to it.
Funo placed all five accused on
the scene and assigned prominent roles to each of them. Thus he testified that
it was accused No 5
who had brought the deceased out of the house and that the
deceased was
20/...
20.
then held by Nos 1, 4 and 5. No 4 then handed No 1 a long knife with which No
1 stabbed the deceased in his side. After the deceased
had been stabbed, he
attempted to escape. Nos 4 and 5 threw stones at him as he ran, which caused him
to fall. . No 2 produced a
tyre and put it around the deceased's neck. The
deceased removed the tyre and No 2 tnereupon again placed the tyre around the
deceased,
tais time from his feet upwards. No 1 poured petrol onto the tyre
and
the deceased, and No 5 ordered everyone present to
collect pieces of
paper and plastic (in cross-examination Funo altered his evidence on this point
and said it was No 4 who gave this
instruction). Funo carried out the
instruction. The pieces of paper and plastic which had been collected by him and
others were placed
in the tyre by No 2. Funo decided to leave at
21/...
21.
that stage. Before he left, however, he saw Nos 4 and. 5 throwing stones at
the deceased as the latter lay on the ground. He also
heard No 5 asking for
matches.
Bangani's version differed from Funo's in very material respects.
Bangani, who was present from the time that the deceased was brought
out of the
house until he was set alight, testified that he did not see Nos 4 or 5 at the
scene at all, and that despite the fact
that he knows them both. He stated that
it was No 3 who ,had brought the deceased out of the house. Stones were thrown
at the deceased
who was trying to run away but fell and was stabbed by No 1. He
did not know where No 1 got the knife. After the tyre had been placed
round the
deceased, No 1 lit the match.
A strange feature of their evidence is that
despite the fact that they were both in close proximity
22/...
22.
to the accused, neither saw the other at the scene of the crime. Funo, when
recalled, stated that he knew Bangani, that he did not
see him there but that he
would have seen him if he had been there. Bangani was, on his own evidence, in
close proximity to the deceased,
having been instructed by the accused,
according to his evidence, to prevent the deceased from escaping. How Bangani
could have failed
to see Nos 4 and 5 at the scene, having regard to the
prominent
roles they were alleged by Funo to have played, is
incomprehensible - assuming of course, that Funo was
telling the truth. On the other hand, if Bangani's evidence is accepted, it
follows, as a probability, that Nos 4 and 5 were not present
and that Funo was
lying.
A further strange feature is that although
23/...
23.
both these state witnesses testified to the deceased having been stabbed in
his side, the post-mortem report which was handed in at
the trial by consent,
(the district surgeon not having been called), makes no mention of such a stab
wound. The post-mortem report
mentions under the heading of "most important
post-mortem findings in regard to the body", that there were two 2cm incised
wounds
in the deceased's head. Later in the report these two wounds are referred
to as lacerations. Counsel for the State attempted to explain
the absence of any
reference to a stab wound in the deceased's side, by submitting that once the
cause of death had been clearly
established, the district surgeon probably did
not consider it necessary to examine the body for further wounds. It is
difficult
to accept this explanation. Experience has shown that
24/...
24.
even if a deceased has one fatal wound, the pathologist performing the
post-mortem examination examines the body and normally itemizes
all the other
injuries he finds. Whatever the reason may be in the present case, the district
surgeon's report does not corroborate
the accomplices' evidence of a stabbing in
the side of the deceased. This point was not adverted to in the judgment of the
trial
ccurt.
The learned judge in the court a
q
uo
indicated that he was aware of the need
for caution in
regard to accomplice evidence. Thus he stated :
"Although they are described as quasi-accomplices, the evidence of either of
them can be sufficient to found a conviction, subject
to the fact that caution
in accepting that evidence is essential. Where a
second
25/...
25.
accomplice is called caution must be exercised in accepting that evidence as
well. But corroboration of an accomplice's evidence
is not essential provided
that that evidence is reliable. However, it is trite that acceptance of the
evidence of the accomplice
is permissible only where the quality of that
evidence and the shortcomings of the evidence of the accused are clear and
unmistakable.
Having said that I must also point out that this does not imply
that the evidence of the accomplice or accomplices should necessarily
be free of
all defects."
The learned judge then proceeded to
deal with their evidence and certain of the discrepancies and contradictions and
concluded as
follows:
"While, as I have indicated, there are discrepancies between the evidence given
by X and A, in all material respects
their
26/...
26.
versions correspond. In assessing the importance of these discrepancies it will
not be overlooked, as I have indicated, that the
incidents occurred not in a
static situation but in a mobile situation. A number of people were present, not
all involved, and the
witnesses X and A viewed the incidents from different
vantage points."
The learned judge then went on to
state that having "studied with great care their demeanour in the box" the court
was satisfied that
they had given their evidence "clearly and unhesitatingly".
He proceeded:
"their descriptions tallied in so many material respects, that minor
discrepancies such as I have mentioned can be accepted as
reasonable".
In dealing with what he
called "minor
27/...
27.
discrepancies", the learned judge did not refer, at all, to the fundamental
difference between the two accomplices as to which of
the five accused were
present. He merely stated that the deceased was "eventually run to earth in a
house at about 9 pm by a group
which included all five accused". The
contradiction between the accomplices as to which of the accused had brought the
deceased out
of the housë, was merely glossed over by the learned judge who
stated:
"Either one person or a number of persons entered the house, and the deceased
was brought out by one of the accused. The witness
A (Bangani) says that it was
no 3 who bróught him out."
The
learned judge did not refer, in this
28/...
28.
context, to the evidence of Funo or to the. contradiction between what Funo
said and what Bangani said. He concluded his assessment
of the evióence
of the two accomplices by stating ;
"In this case the two witnesses described a moving spectacle involving a number
of people
at night. Moreover a spectacle that occurred some twenty months earlier. What
does emerge unmistakably from their evidence is a clear
picture of what must
have occurred. A picture moreover which seems in many respects to be conf irmed
by the film which the police
took of the scene of the crime. What also emerges
unmistakably is the identification by the two witnesses of the persons now
appearing
as the accused in this court."
What
emerges from the evidence of these two witnesses is anything but a clear
picture. It is a
29/...
29.
picture bedevilled by unexplained contradictions and inexplicable features.
Nor can the identification of the five accused be said
to emerge from this
picture. The police film to which the learned judge referred, was a video which
the court was invited to view
during the course of the State case. After the
court had viewed the video, the prosecutor stated :
"I would like to place on record merely that the scene shows that the scene of
the attack took place in a gravel street. The fence
was viewed as well as the
burning area and also various items of rubbish which appear to have been in that
particular vicinity. Apart
from that the general nature of the houses in the
area is all that really can be ascertained from the scene and then of course the
body was viewed again, of which we do have two photos in as exhibits
already."
30/...
30.
That is all that appears on the record about the video. In my view this
video, whatever it might have contained, cannot be described
as providing
confirmation of the picture that emerged from the accomplices'
evidence.
Having dealt with the evidence of the two state witnesses, the
court proceeded to consider the evidence of each of the accused. However,
having
to all intents and purposes already accepted the evidence of the two
accomplices, the court found that the accused were lying
because the evidence of
the
accomplices was accepted. For example, in dealing with No l's alibi which
was that he was drunk and was put to bed by his brother
who was called as a
witness and who corroborated No l's evidence, the learned judge said:
31 /...
31.
"This type of defence is impossible to refute, anó it has to be judged in
conjunction with other evidence which is available.
In this case we have a
positive identification of the accused by two witnesses who were found to be
credible. He was seen at about
9 pm, and after 9 pm by them in the street. His
movements described by them do not suggest that he was under the influence of
liguor
to any great extent, much less to the extent described by his brother.
Appreciating that there was nothing in the evicence of Kusani
which could be
shown explicitly to be false, we cannot overlook the fact that his evidence is
in total contradiction to that of two
acceptable
witnesses."
The learned judge concluded by stating
that "having heard both the accused and Kusani (his brother) we do no believe
their evidence".
Similarly, in the case of accused No 2, the
32/...
32.
learned judge stated :
"Accused no 2 claimed that he was at home on the evening of January 7 1987, and
that he
went to bed after 9 pm. Although his mother was in the house where he lived she
was not called as a witness to corroborate his story.
His claim that he was at
home therefore stands uncorroborated. Faced with the evidence (of) X and A who
specifically identified him
as one of the principal actors in the case, we
reject his evidence and therefore his alibi."
The
cautionary rule in the case of accomplice evide'nce is aimed at overcoming the
danger of an accused being wrongly convicted on
the evidence of an accomplice
who not only has a motive for telling lies but is, by his inside knowledge of
the crime, peculiarly
equipped to convince the unwary that his
33/...
33.
lies are true. See
Rex v Ncanana
1948(4)SA 399(A) at 405. If there is
corroboration of an accomplice's evidence implicating the accused, that would
normallv provide
a sufficient safeguard. The risk of convicting an accused on an
accomplice's evidence would also be reduced if the merits of the
accomplice as
á witness and the demerits of the accused are beyond question. In the
present case there is no corroboration
of the accomplices evidence implicating
the accused. The two accomplices do, on certain aspects of the evidence,
corroborate each
other. However, before the evidence of one accomplice can be
acceptad as corroborative of that of another accomplice, the court musc
bear the
cautionary rule in mind in relation to the corroborating accomplice. See
S v
Hlaoezula & Others
1965(4) SA 439 (A) at
34/...
34.
440-441. In view of the serious deficiencies in the evidence of the two
accomplices, to which I have already referred, the evidence
of neither could, if
the cautionary rule be applied, be regarded as acceptable corroboration of the
evidence of the other.
For these reasons the evidence did not justify the
conviction of accused No 1 or accused No 2 and the conviction and sentence in
respect
of both were set aside.
G. FRIËDMAN AJA.
CORBETT CJ) SMALBERGER JA) VIVIER JA) Concur.
EKSTEEN JA)