S v Dayimani (462/89) [1990] ZASCA 32 (29 March 1990)

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S v Dayimani (462/89) [1990] ZASCA 32 (29 March 1990)

Case No. 462/89
IN THE SUPREME COURT OF
SOUTH.AFRICA (APPELLATE DIVISION)
In the matter between:
STEPHEN MNYAMEZELI TEMBA
DAYIMANI
Appellant
and
THE STATE
Respondent
CORAM
: HOEXTER, E M
GROSSKOPP, JJA et NICHOLAS AJA
HEARD
: 2 March 1990
DELIVERED
:
29 March 1990
JUDGNENT
E M GROSSKOPF, JA
The appellant and one Heteni were
charged before the South-Eastern Cape Local Division with murder.
Both pleaded not guilty before
VAN REENEN AJ and assessors, but were
found guilty. The appellant's co-accused was not proved to have been
at least 18 years of age
when the offence was committed, and he was
2
sentenced to 20 years
imprisonment. The appellant's age was given in the indictment as 49.
No extenuating circumstances were found
in his case, and he was
sentenced to death. With the leave of the trial judge he now appeals
against his conviction and sentence.
The relevant
evidence for the State may be summarised as follows. On 2 July 1986
the police were summoned to a
football
stadium, called the Woolfson stadium, in Kwazakele near
Port
Elizabeth. Inside the stadium they found the corpse of a woman which
had been badly burnt. There also were a burnt-out
truck
and kombi. The body had apparently been burnt by using-
motor
vehicle tyres. On 3 July 1986 a post mortem examination was held by
Dr. A.P. du Plessis. His report was handed in by agreement
between
the parties. Defence counsel expressly confirmed that "die
inhoud van die verklaring word bevestig en
erken
in terme van artikel 220 van die Strafproseswet".
In
his report Dr. du Plessis stated "that, as a result of my
observations,
I
conclude
... that the cause of death was
3
incineration". Literally this
means that the cause of death was the burning of the deceased to
ashes. While perhaps unduly emphatic,
this language is in my view
entirely unambiguous.
A number of
police witnesses stated that, although burnings of this sort were not
uncommon at that time, they had no knowledge of
another person having
been burnt inside the Woolfson stadium. The witnesses to this effect
were detective
warrant officer Faleni, who
had been in the Port Elizabeth murder
and
robbery unit for three years at that time but left it in August 1986;
detective warrant officer Noyo, who was a member of the
Port
Elizabeth murder and robbery unit between 1984
and
August 1987; and detective constable Mpumbani, who was a member of
the Port Elizabeth murder and robbery unit in July 1986 and
was still
a member at the time of trial. Captain Gouws of the same unit found
on an investigation of police records that the deceased
in the
present matter was the only female who had been
burnt
in the Woolfson stadium up to December 1986 (December 1986
was
presumably chosen because the alleged pointing out in the
4
present case took place in that
month), but that there had been an incident in December 1986 in which
a man was burnt. It is not clear
whether this is the same incident as
that testified to by Mpumbani who said that the man was burnt near
the stadium, but not in it.
Whatever might be the admissibility and
cogency of all this evidence, it is at least clear that the deceased
was búrnt to
death in the Woolfson stadium in July 1986, and
that there is no suggestion in the evidence that the same ever
happened to any other
woman.
The deceased was never properly
identified. A thirteen year old girl, Zukiswa Nenemba, gave evidence
that she had not seen her sister
Nololose since July 1986 and had
heard that she had been burnt in the Woolfson stadium, but this
evidence is, of course, of very
little value.
The appellant was arrested on 22
November 1986, apparently under the emergency regulations. On 10
December 1986 he was taken to Captain
Gouws. The State alleges that
the appellant then made a confession to Captain Gouws, and pointed
5
out the scene of the offence to
him. The appellant denied that he had pointed out any spot, or that
he had made any confession. There
were also allegations of torture.
These issues were decided in a trial within a trial held by the full
court, i.e., judge and assessors.
The evidence on behalf of the State
in the trial within a trial was as follows.
Detective Sergeant Faku testified
that, on information received, he questioned the appellant, who was
already in custody. The appellant
expressed his willingness to make a
statement. Faku then handed the appellant to Constable Mzana of the
murder and robbery unit.
Mzana brought the appellant to Captain
Gouws. Gouws testified that the appellant was brought to him on 10
December 1986. In his office
he cautioned and questioned the
appellant and recorded the appellant's answers. Constable Mzana
interpreted. After the answers were
written down, they were read over
and interpreted to the appellant, who signed the document. This
document reads as follows:
"Om 12md op die 10 Desember
1986 en te Moord en
6
Roofkantoor, Port Elizabeth, voor
my BENNETH GOUWS in die S.A. Polisie en ampshalwe h vrederegter in
die distrik van Port Elizabeth
verskyn swartman Myazeli Dayimani
oënskynlik by sy gesonde en volkome verstand.
Die verklaring is deur S/Kst.
Mzana na my kantoor gebring en in die kantoor is daar slegs ek, die
verklaarder en die tolk, S/Kst.
Mzana wie van Afrikaans na Xhosa en
andersom getolk het.
Die verklaarder word meegedeel dat
hy in die teenwoordigheid van h vrederegter is. Die verklaarder word
gewaarsku dat hy nie verplig
is om enigiets te sê of enige plek
uit te wys nie, en as hy enige iets sou sê of enige plek uitwys
dit neergeskryf sal
word en by sy verhoor as getuienis gebruik sal
word. Daarna verstrek hy die volgende antwoorde op die onderstaande
vrae.
1. Begryp u die waarskuwing wat
nou deur my aan
u gegee is?
Antw.: Ja.
2. Is u deur enigiemand aangerand
of gedreig om
hierdie verklaring te maak of enige plek uit
te
wys?
Antw.: Nee.
3. Het u enige beserings aan
u?
Antw.: Nee.
Opmerkings deur vrederegter of
daar enige sigbare beserings aan verklaarder is. Geen.
4. Het enige persoon enige
beloftes aan u gedoen
of enige wyse aangemoedig om h verklaring
of
plekke uit te wys?
Antw.: Nee.
5. Verwag u enige voordele indien
u 'n verklaring
7
aflê of plekke uitwys?
Antw.: Nee.
Is jy in hegtenis geneem? Antw.:
Ja.
Wanneer is jy gearresteer? Antw.:
Saterdag 22 November 1986.
Het u vantevore h verklaring
afgelê of plekke uitgewys?
Antw.: Nee.
Indien wel, aan wie en waar?
Antw.: N.V.T.
Indien u nog begerig is om h
verklaring af te lê of plekke uit te wys kan (u) nou
voortgaan.
(get.) M.M. DAYIMANI"
Thereafter, at 13h05, Captain
Gouws, Constable Mzana
and one Detective Constable
Strydom left the police station to
enable the appellant to point out
certain spots. Strydom went
along as driver and for security
reasons. They drove to the
Woolfson stadium and entered it.
What then happened was recorded
contemporaneously (according to
Gouws) as follows:
"... verklaarder wys uit 'n
uitgebrande trok wat langs die muur van die stadium staan. Toon h
plek op die grond tussen die muur
van die stadium en die uitgebrande
trok waar h onbekende s/vrou deur Comrades en myself met 'tyres'
doodgebrand was. Die swart brandplek
op die grond is nog duidelik
sigbaar."
8
The appellant afterwards pointed
out various other spots which are not of relevance to the present
case. Captain Gouws recorded these
also, and ultimately his notes
were read back and interpreted to the appellant, who indicated that
he understood and again attached
his signature. Captain Gouws had had
no previous knowledge of this case.
Mzana, who at the time of the
trial was no longer in the police force, testified that when Faku
handed the appellant to him, he took
the appellant to Captain Gouws
because Captain Gouws was dealing with cases in which people had been
burnt. Thereafter he interpreted
what Captain Gouws and the appellant
said to each other. At the outset Captain Gouws asked the appellant
what the purpose of the
visit was, and the appellant started talking.
Captain Gouws made notes. Afterwards they left in a motor vehicle.
Constable Strydom
was driving, and the appellant gave directions.
Captain Gouws made notes. Eventually they arrived at the Woolfson
stadium. Mzana's
evidence in chief then reads as follows:
9
"En wat het daar gebeur? —
Dit is waar hy uitgewys
het.
Kan u onthou wat hy uitgewys het?
-- Wat ek nog kan
onthou is die plekke waar hy
uitgewys het. Hy het ook
verder gesê dit is nou die
plek waar h vrouenspersoon
uitgebrand was."
Constable Strydom also testified.
He confirmed that he was the driver on the particular day and that
the appellant directed him to
the Woolfson stadium. There the
appellant, Gouws and his interpreter (Mzana) left the car and the
appellant pointed something out
to the others. Strydom remained in
the car.
The appellant testified that he
was arrested on 22 November 1986. During the first couple of days, he
said, he was beaten and tortured
to provide information about certain
people, and also to produce a gun. This carried on until 24 November
1986, when the appellant
was apparently taken to the St. Albans
prison, where, according to his evidence, he remained until he was
taken to see Captain Gouws
on 10 December 1986. The appellant did not
say that he was ill-treated in any way after
10
24 November. On
10 December he was fetched at St. Albans by two policemen who took
him to Captain Gouws. He denied that Faku or Mzana
took part in
taking him. When
he arrived at the office,
he found Gouws and Mzana there. Gouws guestioned him about firearms,
but he could not provide any information.
(Later, under
cross-examination, he said that this did not happen in Gouws office,
but on a previous occasion in another white policeman's
office). They
then put leg-irons on him, and Mzana said they were going to show him
places where they had picked up
people who
were burnt and in respect of whom they could not trace the culprits.
The three of them then left in a motor car. Strydom
was not present.
They drove to the Woolfson stadium, but
the
appellant did not point out anything.
Under cross-examination he denied
that Gouws asked him anything or said anything to him in the office.
All Gouws did was to bring
him four papers and tell him to sign at
the bottom of each of the pages. He did not know what these pages
contained (presumably they
were the notes referred to by Captain
Gouws).
11
He was not threatened or assaulted
in the office. When the three of them were in the car, Gouws was the
driver. He denied that Gouws
made any notes while they were in the
car, denied that he (the appellant) gave any directions, and denied
that he pointed out any
spot.
The appellant's allegations of
torture were denied by all the police officers concerned, and he was
strenuously cross-examined in
regard thereto. It is, however, not
clear to what extent he relied on these allegations in respect of the
voluntariness of any statement
he may be found to have made to
Captain Gouws.
At the end of the trial within a
trial the Court held that the pointing out and statement were
admissible. The State then closed its
case, and so did the defence,
without calling the appellant to give any further evidence.
In its judgment the trial court
rejected the evidence of the appellant. This finding was not attacked
on appeal, and in my view rightly
so. The appellant clearly was an
unimpressive
12
witness. It appears that the Court
accepted the State evidence, and particularly that of Captain Gouws.
The Court convicted the appellant
on the evidence of his confession
to Captain Gouws, coupled with the evidence that the offence was
actually committed. As the Court
pointed out, this course is
permissible in terms of
section 209
of the
Criminal Procedure Act,
no. 51 of 1977
.
The only
argument raised before us on appeal against
the
conviction was that there was a conflict between the evidence
of
Captain Gouws and that of Mzana. Captain Gouws, it will be recalled,
noted down that the appellant pointed out a spot
"waar
'n onbekende s/vrou deur Comrades en myself met tyres doodgebrand
was." Constable Mzana, in the passage quoted above,
stated "Hy
het ook verder ges
ê
dit is nou 'n plek waar 'n vrouenspersoon uitgebrand was." Mzana
consequently did not say that the appellant implicated himself
in any
way. The statement by Mzana
was
spontaneously given in reply to the question whether he could
remember what was pointed out. The matter was not taken further,
13
and
in particular Mzana was not asked whether his answer
represented
accurately everything which the appellant had said. Moreover, Mzana
gave evidence in April 1989 concerning a pointing
out
which had occurred in December 1986. He did not have the
benefitof
contemporaneous notes. Captain Gouws, on the other
hand,
noted down this statement at the time it was made, and it was read
back and interpreted to the appellant, and signed by
him.
In these circumstances
I
do
not think that Mzana's evidence
detracts
from that of Captain Gouws in any way.
If the
evidence of Captain Gouws is accepted there can, in my view, be no
doubt about the appellant's guilt. The statement by the
appellant is
very brief but unambiguous. He himself has not suggested that he was
misunderstood, and there does not appear to be
any room for
misunderstanding. Nor has he given any explanation which might
indicate that his statement should not be taken at face
value.
One must
always,of course, bear in mind the possibility that a confession may
be false, but there is nothing in the
14
present case to
suggest it,otherwise than in the case of
S
v. Kumalo
1983(2) SA 379 (A) to which
my brother NICHOLAS refers.
I
do
not, with respect, agree with my brother NICHOLAS that any
significance attaches to the inaccuracy of the spot pointed out by
the
appellant. From the photographs this spot would appear to be no
more than a few yards from that where the deceased was found. An
error of this sort would be normal after the lapse of six months
since the event, and the more so where there was a burnt area at
the
spot pointed out, which would have suggested
that
it was there that the deceased was murdered. And there does not seem
to be any reason why the appellant should falsely
incriminate
himself. There can, for instance, be no suggestion that he is
shielding anybody else, nor is any other motive suggested.
For the reasons
aforesaid
I
consider
that the appellant
was rightly convicted.
The appellant's counsel presented
no argument in respect of the finding that there were no extenuating
15
circumstances. On the face of it
the murder of the deceased was a cruel, calculated act. The
onus
of establishing extenuating circumstances rested on the accused, and
he placed nothing before the Court which might tend towards
proving
such circumstances, nor was there anything in the evidence for the
State which could assist the appellant in this regard.
The appeal
against the finding that there were no extenuating circumstances must
accordingly also fail.
In the result the appeal is
dismissed.
E M GROSSKOPF, JA
HOEXTER,JA concur
Case No. 462/89
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
In the matter between:
STEPHEN MNYAMEZELI TEMBA
DAYIMANI
Appellant
and
THE STATE
Respondent
Coram:
HOEXTER, E M
GROSSROPF, JJA et NICHOLAS AJA.
Heard:
Delivered:
2 March 1990.
29
March 1990.
2
JUDGMENT
NICHOLAS AJA
:
On the morning of 2 July 1986 a
charred human body was found lying in the Woolfson Stadium in
Kwazakele Township, Port Elizabeth.
Upon it were the burnt-out
remains of four or five motor vehicle tyres, and lengths of wire
which had been an integral part thereof.
The body was unrecognisable.
It may have been that of a Black woman named Nololose Nenemba, who
was last-seen on 1 July 1986, but
it was never identified.
In the report
on the
post mortem
examination,
the body was described as "the
charred remains of a female", and the cause of death was said to
be "incineration".
Arising out of the discovery of
the body, Stephen Dayimani was arraigned in April 1989 as accused No.
2 before VAN REENEN AJ and two
assessors at a sitting at Port
Elizabeth of the South East Cape Local Division of the Supreme Court.
Accused No. 1 was Vuyane Mgotho
Heteni. The
3
two were charged with murdering
Nololose Nenemba, or an unknown Black woman, on 1 July 1986 at or
near Woolfson Stadium, Kwazakele,
Port Elizabeth. They pleaded not
guilty, but were found guilty as charged. The trial court having
found that it had not been proved
that Heteni had reached the age of
18 at the date of the crime, he was sentenced to 20 years'
imprisonment. No extenuating circumstances
were found in the case of
Dayimani and he was sentenced to death. With the leave of the trial
judge he now appeals against the conviction.
In what follows he will
be referred to either as "the appellant" or as "the
accúsed".
At the trial there was no evidence
from an eye-witness. The evidence against each of the accused (which
consisted mainly of their
pwn incriminating statements and
pointing-out) was largely in separate compartments and no connection
was shown to exist between
them. It will consequently be unnecessary
to refer ágain to accused No. 1.
The appellant was detained under
the Emergency
4
Regulations in November 1986. On 7
December 1986 he was arrested by Det. Sgt. Faku of the South African
Police.Without objection from
defence counsel or demur from the trial
judge, prosecuting counsel led Faku to say that he was given the name
of the person who committed
the offence in relation to a person who
was burnt in the stadium and he arrested that person, who was accused
No. 2. Faku said that
he questioned the accused, who gave him an
explanation, and said that he wanted to make a statement to Faku.
Faku declined to listen
to it and handed him over to Constable Mzana
of the murder and robbery unit on 7 December 1986, telling him "dat
beskuldigde
praat oor mense wat nou uitgebrand was en hy het hom
gebrïng."
Det. Const. Mzana confirmed that
he had received the accused from Faku. At about 12 noon on 10
December 1986 he took him to Captain
Gouws at New Brighton Police
Station. At the interview which followed, Mzana acted as interpreter
from Xhosa to Afrikaans and the
other way round. In Gouws's
5
office the accused was asked the
object of his visit, and "(hy) het vir ons vertel wat hy weet."
This was written down by
Gouws. The accused was willing to go and
point out the places mentioned in the statement. Mzana said that he
could remember the places
which were pointed out and that the accused
".... het ook verder gesê dit is nou h plek waar h persoon
uitgebrand was."
Captain Gouws's evidence differed
from that of Mzana in certain respects. He said that Mazana brought
the accused to his office for
the purpose of pointing out. Hy put to
the accused the precautionary guestions which normally preface the
taking of an accused's
statement, and recorded the answers on Ex.
"F". The guestions and answers were then read back and
interpreted to the accused.
Capt. Gouws said nothing about the
accused making a statement in his office, and it is implicit in his
evidence that he did not do
so. He read out notes which he made at
the time (Ex. "F"):
6
".. Om 13h05 op 1986-12-10
vertrek vanaf New
Brighton polisiestasie in motorkar
vergesel van bestuurder, speurderkonstabel J Strydom en tolk,
speurderkonstabel Mzana. Ry in die
rigting van Kwazakelewoonbuurt, ry
tot by Issac Woolfson stadium, Kwazakele. Ry stadium binne,
verklaarder wys uit h uitgebrande
trok wat langs die muur van die
stadium staan. Toon 'n plek op die grond tussen die muur van die
stadium en die uitgebrande trok
waar 'n onbekende swartvrou deur
Comrades en myself met 'tyres' doodgebrand was. Die swart brandplek
op die grond is nog duidelik
sigbaar."
He explained that Strydom
accompanied them because he (Gouws) had to make notes, and also for
security reasons. Mzana went as interpreter.
After completion, Ex 'F'
was read over, interpreted into Xhosa to the accused, who indicated
that he understood it and then signed
it.
Det. Sgt. Strydom also gave
evidence for the State. He said that on 10 December 1986, and at the
request of Gouws, he assisted at
a pointing-out. He went along
"omrede dit onlustesituasie was en ek het vir begeleiding en ook
beveiliging saamgegaan." He
drove the vehicle, and
the accused indicated to him the
route he should follow.
7
Gouws wrote down everything which
the accused said as
interpreted by Mzana. At the
stadium Gouws, the interpreter
and the accused got out and the
last-mentioned pointed out
places to Gouws.
When he came to give evidence, the
accused said
that he was taken to Gouws's
office. Mzana was present.
After he had been questioned about
fire-arms, he was put in
leg-irons and taken out in a car.
Strydom was not there.
He asked where they were going to.
The Black detective (i.e.
Mzana) said,
"... we are going to show you
places where we picked up people which were burnt and we could not
trace the culprits."
When it was put to him that the
reason why he was taken out
was that he said that he wanted to
point out certain places,
he replied, "They are telling
lies, there is no such thing."
He said he never pointed out any
place at the stadium. He
did not point to a spot where he
said he and the Comrades
burnt a Black female with tyres:
he did see a black spot
8
there but it was not pointed out
by him. He was never at the
killing of the woman. He had never
been to the Woolfson
Stadium before that particular
day. He admitted signing the
notes made by Gouws.
In giving the judgment of the
trial court, VAN
REENEN AJ said that there was no
doubt that the accused was
a consummate liar, and that his
counsel had not contended to
the contrary. The court was
satisfied that Ex. "F" was
freely and voluntarily made and
was admissible in its
entirety.
He said:
"Die lykskouing wat later
gedoen is, toon dat die liggaam erg verbrand was en dat uitkenning
nie moontlik was nie. Die ondersoek
het ook getoon dat daar rook in
die longe was, wat 'n aanduiding was dat die brand begin is toe die
vrou nog geleef het."
In the core passage in the
judgment he said:
"Ingevolge die bepalings van
artikel 209 [van die
Strafproses Wet
] kan h beskuldigde aan h
misdryf skuldig bevind word op die enkele bewys van
9
'n bekentenis deur daardie
beskuldigde dat hy die betrokke misdryf gepleeg het en indien die
bekentenis in 'n wesenlike opsig bevestig
word of dat daar ander
getuienis is wat bewys dat 'n misdaad inderdaad gepleeg is. In
hierdie geval het ons
bekentenisse
van altwee beskuldigdes dat hulle
aandadig
was aan die dood van die oorledene. En daar is dan verder afdoende
bewys dat op die betrokke dag 'n swartvrou op daardie
plek verbrand
is. Die verkoolde lyk van 'n swartvrou is
daar
gevind met die reste van uitgebrande
bande op haar.
Daar
was
ook getuienis dat daar gedurende die
betrokke
tydperk geen ander swartvrou verbrand is
nie.
Daar word dus aan die tweede vereiste wat
daar
in artikel 209 is, voldoen. Dat beide beskuldigde skuldig is aan
die moord
op
die
oorledene ly geen twyfel nie. Hulle word
dus
skuldig bevind aan die moord van die
oorledene,
ongeag wie sy mag wees."
In my respectful opinion the
judgment, is open to
criticism in three important
respects.
(1)
I
do not agree with the finding of the trial
court that there was proof that the cause
of the decead's death was burning.
It was necessary for the State to
prove beyond a reasonable doubt, and
dehors
the evidence of
the accused,
10
that the deceased was alive when
the burning began. This proof the trial court found in the report of
the
post mortem
examination.
That
post mortem
examination was carried out on 3 July 1986 by Dr Andrew Philip du
Plessis, a qualified medical practitioner in the service of the
State
as a district surgeon at Port Elizabeth.
The report was handed in as Ex.
"D" by consent, and the defence counsel admitted and
confirmed its contents in terms of
s. 220 of the Criminal Code. Dr du
Plessis was not called to give evidence.
This has become a common
procedure. No doubt, it may result in a saving of court time, and of
inconvenience to the medical witness
concerned. But it is not a
procedure to be encouraged. It is subject to the inherent risk that
matters which ought to have been inyestigated,
questions which ought
to have been answered and difficulties which ought to have been
resolved, are left untouched, with a
11
resulting possibility of injustice
to one party or the other.
The present is a case in point.
In Ex. "D" Dr du Plessis
certified that on 3 July
1986 he examined the body of a
black female; that the chief
post mortem
findings made
by him on this body were as set out
in paragraphs 4, 5, 6, and 12; and
that, as a result of his
observations, a schedule of which
followed, he concluded that
the cause of death was
"INCINERATION". In the "Schedule of
Observations" was listed a
series of "Nil abnormal noted",
which was interrupted only by the
said paragraphs 4, 5, 6 and
12. These read:
"4. External appearance
of
body and condition of
limbs
The charred remains of
a
female.
5. Skull: No fracture is
present.
6. Intracranial
contents:
Congested.
12. Trachea and bronchi: There is
soot present"
Incineration
is not a term
of art. DORLAND'S
Illustrated Medical Dictionary
, 25th ed.,
gives the word its ordinary meaning:
12
"
incineration
[L. in
into +
cineres
ashes] the act
of burning to ashes; cremation."
The
Shorter Oxford Enqlish
Dictionary
gives -
"
Incinerate
.... 1.
trans
. To reduce to ashes, consume by fire. 2.
intrans
.
To become reduced to ashes."
"
Incineration
,
reduction to ashes;
spec
. (esp, in US) the cremation of the
dead."
In its ordinary meaning,
"incineration" is not a cause of
death, but a method of reducing a
corpse (or other object)
to ashes. It is possible that Dr
du Plessis meant no more
than "burning". If that
is so the word "incineration" as
used by him was at least
ambiguous, and this should have been
cleared up by his giving evidence
on the cause of death.
The basis for the doctor's
conclusion could only
have been paragraphs 4, 5, 6 and
12. Paragraph 4 ("The
charred remains of a female")
indicates that the body was
"incinerated". Paragraph
5 ("No fracture (of the skull) is
present") may exclude death
from a head injury. But the
significance of paragraphs 6
("Intercranial contents:
13
Congested") and 12 ("Trachea
and bronchi: There is soot present.") is not apparent to the
layman.
When Ex. "C" was put in
, the learned trial judge said that the fact there was soot in the
lungs meant that the deceased
was still breathing when the fire was
started.
Counsel for the State agreed;
defence counsel was silent. Whatever the learned judge's private
knowledge on the point, this was not
a matter of which he was
entitled to take judicial notice, or on which he could properly give
instruction to his assessors. It was
a matter of medical knowledge,
on which evidence from an expert was required.
In my opinion therefore the
post
mortem
report did not by itself provide proof that the deceased
was alive when the burning started.
(2) It was not quite correct that
there was a confession from No. 2 accused that he was implicated in
the death of the deceased. All
that happened was that he pointed out
a place in the stadium "waar 'n onbekende swartvrou deur
14
Comrades en myself doodgebrand
was". It was not established
that the place pointed out to
Gouws by the accused was the
place where the deceased was
burnt.
Photographs of the scene with the
charred body
in situ
were taken on 2
July 1986, and handed in as Ex "A".
On photo No. 2 forming part of
that exhibit, the body can be
seen lying in the foreground in
front of the relic of a
scarred and stunted little tree.
Some distance behind it in
the middle-ground is a burnt-out
truck, standing parallel to
a wall. In a close-up, (Photo No.
1.) the body is seen with
fragments of burnt-out tyres, and
the wires on top of it.
(Faleni had said in his evidence
that -
"According
to my opinion this person was burnt by
tyres,
because
I
could
clearly see that there were
wires on the
body of the deceased.")
The following is an extract from
Gouws's evidence. (The
questions are those of prosecuting
counsel).
"Ek wil hê u moet
vlugtig kyk na BEWYSSTUK A, dit is die tweede foto asseblief — Dit
is reg, ja. Kan u miskien op die
foto vir ons wys indien daar
15
so 'n plek is waar die beskuldigde
uitgewys het, die
brandmerke uitgewys het? — Dit
is foto nr 2,
tussen die muur, die oop deur en
die regter
voorwiel, het beskuldigde nr 2 'n
plek op die grond
uitgewys. Daar was swart merke.
Het u enige verdere ondersoek
ingestel na enige
ander merke wat in die omgewing
kon gewees het? -
- Nee.
So u het net gegaan op wat hy
uitgewys het? — Dit
is korrek."
This evidence agrees with what was
recorded in Ex. "F" as
having been pointed out by the
accused on 10 December 1986.
(See above).
Although not far away from it,
this was not the spot where the body was found lying. And there is no
possibility of confusion.
When pointing out to Gouws, the
accused did not give a date to the burning of which he was speaking.
In an attempt to meet this difficulty,
the State led evidence from
Gouws, Det. W/O Faleni, and Det. W/O Noyo. This evidence was directed
towards showing that there was
only one woman burnt at the Woolfson
Stadium during the relevant period,
16
If established, this would ground
an inference that the incident referred to by the accused was the
occasion on which the deceased
met her death.
The following is the relevant
extract from Gouws's evidence:
Nou kaptein, ek het. u gister
gevra om sekere ondersoek in te stel, vir my navraagwerk te doen, is
dit korrek so? — Dit is korrek.
Kan u vir die hof verduidelik wat
ek u gevra het? -- Of daar enige swartvrou in die Woolfsonsstadium
vanaf Mei 1986 tot die twaalfde
maand 1986 binne in Woolfsonstadium
uitgebrand.was.
Het u toe die misdaadregister
deurgegaan? --Ek het ons register nagegaan, edele.
En wat het u uitgevind? -- Dat
daar wel h man, swart manspersoon gedurende Desember in die
Woolfsonstadium uitgebrand is.
Desember 1986? -- 1986. Maar geen
swartvrou was uitgebrand binne die Isaac Woolfsonstadium nie.
Behalwe die — Behalwe die
voorval."
It is not clear why the
investigation was limited to the period May 1986 to December 1986.
Whatever the reason for that, it is clear
that this evidence was
hearsay. It was inadmissible at common law and no attempt was made to
get it in under s.3 of the
Law of Evidence Act
, 1988. It
17
should therefore have been
disregarded.
The evidence of Faleni which was
relevant to this point was the following:
"Now
whilst you were with murder and robbery did you
deal
with many of these types of burnings?
—
During that
period
I
can say every day.
Do you yourself
know of any other such burning that took
place
at the Woolfson stadium?
—
No,
I
never
attended any
other scene in the same spot.
That was the only one.
I
do
not even know whether there was anybody
else which had also
been burnt there.
Perhaps
I
can sum it up and you can tell me if
I
am
correct. Are
you saying that as far as you, Detective
Warrant Officer Faleni is
concerned, in other words, your own
knowledge, this is the only such
case at that particular place? -- That is correct.
(The question
put when prosecuting counsel summed it up
was
leading in form, and misleading in
content. The witness was
not in a position to say "of
his own knowledge" that "this
was the only such case at that
particular place." He had
just said that this was the only
scene he had ever attended
in the same spot, and that he did
not "even know whether
there was anybody else which had
also been burnt there.")
In his cross-examination by
defence counsel the following was
18
recorded:
My question is
did you attend to a similar incident subsequent to this in the
township?
—
Yes,
prior to this case
I
did
see similar cases, but after this incident
I
left murder and robberyV
I
see.
And you never attended to incidents
of this
nature in the township?
—
When?
After you left
the murder and robbery unit.
--
I
did.
In the township? — That is
correct.
In the Woolfson stadium? -- There
was no other similar offence in the Woolfson stadium.
Which you attended, that is what
you added? — That is correct.
Your other
colleagues, did they attend?
—
I
do not know."
Noyo said that he had been with
the murder and
robbery unit since 1984, and had
investigated many instancres
of this type of case. Asked, "Did
you yourself know, do you
know of any other person that was
burnt in the Woolfson
stadium by this method?" he
replied "No." In
cross-examination, the following
was recorded
MR MTHIYANE:
Mr Noyo, you
have said in your evidence that at the Woolfson stadium during that
particular period, this was the only body that was
burnt? -That is
correct.
Right, what
I
would like to find out from you
19
is what do you mean when you say
during that
period. We know that it is being
alleged that this
body was burnt
on 1 July 1986.
—
I
meant that
I
was dealing with these cases
during then and this
was the only body that was found
burnt in Woolfson
stadium.
COURT:
But now what period?
— Since 1984.
The time that you were in murder
and robbery, is that what it is? — That is correct.
I
do
not think that on the evidence of Gouws,
Faleni and Noyo, the trial court
was justified in finding
"dat daar gedurende die
betrokke tydperk geen ander vrou daar
verbrand
is nie." I
have already mentioned
criticisms of
Gouws and Faleni. In regard to
Noyo, the prosecution did not
attempt to qualify him to give the
evidence which he gave.
As a detective warrant officer, he
was hardly in a position
to know of his own knowledge
everything that was done by
others during the relevant period,
whatever he may have heard
through reports and gossip.
Moreover he gave evidence nearly
3 years after the relevant date,
and he did not depose to any
record from which he could refresh
his memory. In my opinion
Noyo's evidence did not provide a
safe foundation for the
20
drawing of the inference.
(3) It appears from the judgment
that the trial court, having decided that there had been compliance
with s. 209, was of the view
that this concluded the matter; that it
then followed that there could be no doubt that the accused were
guilty of murdering the
deceased. There was no further enquiry.
This was an error. S. 209 provides
that an accused
may
be convicted when the requirements there
laid down have been satsfied, not that he
must
then be
convicted. Even though there has been compliance, the court must
still be satisfied beyond a reasonable doubt that the accused
is
guilty. And this requires consideration of the guestion whether the
confession is a genuine one.
In the case of
Walter Sykes
,
decided in 1913 and reported in 8 Cr. App. R 233, RIDLEY J (with whom
PICKFORD AND AVORY JJ concurred) approved the following instruction
to the jury on the way to approach to a confession:
21
"The law is that if a man
makes a free and voluntary confession which is direct and positive,
and is properly proved, a jury
may, if they think fit, convict him of
any crime upon it. But seldom, if ever, the necessity arises, because
confessions can always
be tested and examined, first by the police,
and then by you and us in Court, and the first question you ask when
you are examining
thê confession of a man is, is there anything
outside it to show it was true? is it corroborated? are the
statements made in
it of fact so far as we can test them true? was
the prisoner a man who had the opportunity of committing the murder?
is his confession
possible? is it consistent with other facts which
have been ascertained and which have been, as in this case, proved
before us?"
This dictum has frequently been
quoted with approval in cases
in Rhodesia see (
R v Funwane
1956(4) SA 761 (FC);
R v O
1963(1) SA 43 (SR); and
R v
Madyedzo
, 1964(4) SA 807
(S.R.A.D) at 810.)
It was pointed out in
R v
Sibanda
1965(1) 236 (S.R,
A D) per BEADLE CJ at 239 D-G that
the tests outlined in
Sykes
cannot be regarded as
exhaustive; and that there is
no suggestion that all the tests
must all be applicable -
"whether the application of
any one particular test will be
22
sufficient in any particular case
must depend entirely on the circumstances of that case."
In my respectful opinion, the
Sykes
dictum provides a useful guide for the assessment of the
genuineness of a confession.
See
S. v Kumalo
1983(2) SA
379(A) per BOTHA JA at
383 G to 384 A.
"In
general, the danger of an innocent person
freely
and voluntarily confessing to a crime he did
not
commit is no doubt slight (
R v Sikosana
1960
(4) SA 723
(A) at 729C), but it is
nevertheless
real; and, when once it
appears that a purported confession contains a material untruth, as
is the position here, the need for the
Court to be on
i
ts
guard against the danger of the confession being
false
in its essence, ie as to guilt of the "confessor", is
immediately more compelling.
Experience in
the administration of justice has
shown
that people occasionally do
make false
confessions, for a variety of reasons. Our
Courts have recognised this phenomenon of human nature
(see,
eg.
R v Sikosana (supra)
;
S v Mbambo
1975(2)
SA 549(A) at 554 C-D;
S
v Mjoli and Another
1981 (3) SA 1233(A)
at 1237G, 1239 B-F, 1245 E-H), and so has our Legislature, which from
early times
provided safeguards to be
complied with before an accused person could be convicted on the
strength of a confession (see
Mioli's
case
supra
per JANSEN
23
JA at 1239
F-1240 H)." The reality of
the danger
of false self-incrimination is exemplified by a case in this court:
S
v Njaba
1966(3) SA 140 (A). The
appellant was tried on a charge of murder. At
his
trial a confession made by him was handed in as an
admitted
document. He did not give evidence. He was convicted and, no
extenuating circumstances having been found, he was sentenced
to
death. It was subsequently established that at the time of the murder
he was incarcerated in Leeuwkop Gaol.
In the present
case the accused's "confession"
was
terse in the extreme. It was unaccompanied
by any circumstantial detail which would have lent verisimilitude to
the bald assertion
that he and Comrades burnt a woman to death. In
regard to the circumstances of the crime nothing was proved beyond
the discovery
of the body and the report on the
post
mortem
examination. In the summary of
material facts which accompanied the indictment, it was stated that
24
on or about
Tuesday 1 July 1986 a group of persons of which the accused were
members, took the deceased to the Woolfson Stadium. Members
of the
group hit the deceased with kieries. Later they put tyres upon her,
poured petrol thereon, and set fire to it. There was no
evidence
direct to prove any of this. Apart from the fact that the charred
body of a woman was found in the stadium, there was nothing
to show
that the accused's statement was true. There was little by which the
statement could be tested, except that the spot pointed
o
ú
t
by the accused differed from that where the body was found. There was
no evidence to show that he had an opportunify
of
committing murder, or that the confession
was credible.
In my opinion
therefore the evidence in this case
did not
provide a safe basis for the conviction of the appellants.
I
would allow the appeal, and set aside the
conviction and sentence.
H C NICHOLAS AJA+"