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[2020] ZASCA 115
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Director of Public Prosecutions: Gauteng Division, Pretoria v Mbonani (1198/2019) [2020] ZASCA 115 (30 September 2020)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 1198/2019
In the matter between:
THE DIRECTOR OF PUBLIC
PROSECUTIONS:
GAUTENG
DIVISION, PRETORIA
APPLICANT
and
TOKOLOGO
MBONANI
RESPONDENT
Neutral
citation:
The
Director of Public Prosecutions: Gauteng Division, Pretoria
v
Mbonani
(1198/2019)
[2020] ZASCA 115
(30 September 2020)
Coram:
CACHALIA and ZONDI JJA and MATOJANE AJA
Heard:
19 August 2020
Delivered:
This judgment was handed down electronically by
circulation to the parties' representatives by email, publication on
the Supreme
Court of Appeal website and release to SAFLII. The date
for hand-down is deemed to be on 30 September 2020.
Summary:
Criminal law and procedure –
Application for leave to appeal against refusal by trial to reserve
questions of law - application
referred for oral argument –
whether the trial court correctly dismissed the applicant's
application for the reservation
of questions of law in terms of
s 319
of the
Criminal Procedure Act 51 of 1977
. Whether points of law
properly reserved
ORDER
On
appeal from
Gauteng Local Division,
Pretoria (Phahlane AJ) sitting as a court of
first instance):
(i)
The application for leave to appeal is
upheld in respect of the application for reservation of questions 1
and 2.
(ii)
The application for leave to appeal is
dismissed in respect of the application reservation of questions 3
and 4.
(iii)
The application for leave to appeal against
the acquittal of the respondent on the murder and theft counts
is granted;
(iv)
The appeal against the acquittal of the
respondent on the counts of
murder (planned or premeditated), rape
and robbery is dismissed;
(v)
The appeal against the acquittal of the
respondent on the alternative
counts of murder (without planning
or premeditation) and theft is upheld;
(vi)
The order of the Court a quo is set
aside and substituted by the
following:
"
(a) The application by the state to reserve questions 1 and 2
as
questions of law is granted.'
(b)
The application by the state to reserve questions 3 and 4 as
questions of law is refused.
(c)
The accused is acquitted on the main counts of murder
(with
planning or premeditation) robbery and rape.
(d)
The accused is found guilty of murder and theft."
(e)
The matter is referred back to the trial court to consider an
appropriate sentence
JUDGMENT
Matojane
AJA (Cachalia and Zondi JJA concurring)
[1]
This is an application terms of
s 319
read with s 317(5) of the
Criminal Procedure Act 51 of 1977 ("the Act") for leave to
appeal against the refusal by the
Gauteng Division of the High Court,
Pretoria (the high court) (Phahlane AJ) to reserve four questions of
law in favour of the applicant.
[2]
The respondent, Mr Tokologo Mbonani, was arraigned in the high Court
on four counts.
The first, count 1, was a charge of kidnapping. The
second, count 2, was a charge of murder read with the provisions of s
51(1)
of Act 105 of 1997. The third, count 3, was a charge of robbery
with aggravating circumstances read with the provisions of
s 51(2)
of
the
Criminal Law Amendment Act 105 of 1997
. The fourth, count 4, was
a charge of rape read with the provisions of
s 51(2)
of the
Criminal
Law Amendment Act 105 of 1997
.
[3]
The indictment alleged that on 20 March 2017, the respondent falsely
informed a lady
friend of his that he knows about a possible job
opportunity for a lady at the place where he was working. The lady
friend then
contacted the deceased, a relative of hers who was
interested in finding a job. The deceased then went to the place
where the respondent
and a relative were present. The respondent and
the deceased then left supposedly for the respondent's workplace. The
deceased
disappeared and was nowhere to be found.
[4]
On 23 March 2017, family members of the deceased went to the house of
the respondent.
They found the deceased's cellular phone in his home.
The respondent was arrested and detained. On 28 March 2017, the
respondent
pointed out the body of the deceased in a secluded place
in the Brakpan area to the police. She was naked, and parts of her
body
were burnt. The cause of death was determined to be carbon
monoxide inhalation.
[5]
The charges were put to the respondent on 6 March 2018. He tendered a
plea of not
guilty to kidnapping (count 1) and rape (count 4) and a
plea of guilty to murder (count 2). Concerning the charge of robbery
(count
3), the respondent pleaded guilty to theft as a competent
verdict. A written plea statement in terms of s112(2) of the Act
signed
by the respondent and his legal representative was read into
the record.
[6]
The state indicated to the Court that the facts tendered were not
acceptable to the
state. The state submitted that the murder was
planned or premeditated, which would bring the murder charge within
the ambit of
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
and for which a sentence of life imprisonment was applicable. The
state also said that it was not prepared to accept the plea on
the
competent verdict on the robbery charge.
[7]
A plea of not guilty was subsequently entered in terms of s113 of the
Act in respect
of counts 2 and 3 as well. The respondent was not
asked whether he was prepared to allow anything said by him during
the plea explanation
process to stand as an admission in terms of s
220 of the Act.
[8]
The defence proceeded to tender certain formal admissions in terms of
s 220 of the
Act. The state led the evidence of four witnesses,
namely Capt Magane, Palesa Sibeko, Nomvula Mokwai and Dr Skosana.
Both the state
and the respondent closed their respective cases
thereafter.
[9]
On 13 March 2018, the trial court, Phahlane AJ acquitted the
respondent on all counts.
The Court held that it could not confirm
the contents of the s112(2) statement as it had been rejected by the
state and that there
was no reason that the Court could accept any of
the admissions in the s 112 statement.
[10]
Dissatisfied with the outcome, the applicant requested the Court
a
quo
to reserve four questions of law as envisaged by s 319(1)
[1]
of the Act for consideration by this Court. The trial court refused
the application.
[11]
The applicant, still dissatisfied, lodged a petition to this Court in
terms of s 317(5) read
with s 319 (3) of the Act against the refusal
by the trial judge to reserve the questions of law in its favour. The
petition was
referred for oral argument on 27 February 2019.
[12]
This Court has to determine whether the trial court erred in refusing
to reserve the four questions
of law under s 319(1). S 322
[2]
of the Act sets out the powers that may be exercised by the Court of
the appeal hearing an appeal relating to any question of law
reserved
under s 319.
[13]
It bears mention that before a question of law may be reserved under
s 319, three requisites
must be met. First, the question must be
framed accurately, leaving no doubt what the legal point is.
Secondly, the facts upon
which the point hinges must be clear.
Thirdly, they should be set out fully in the record together with the
question of law
[3]
. Where this
is not done the question of law is not reserved correctly. It is
against this background that I turn to consider the
four questions
that the state sought to have reserved as questions of law:
[14]
Question 1
'Was
it permissible for the trial court in determining whether or not the
state proved its case beyond a reasonable amount against
the accused,
to disregard the contents of
s 112(2)
of the
Criminal Procedure Act
51 of 1977
statement in total as part of the evidential material in
circumstances where the provisions of
s 113
of Act 51 of 1977 was
applied?'
[15]
The Court
a quo
held that at the stage when the state rejected the s 112 statement,
there were no other allegations made or admitted by the respondent
apart from the s 220 admissions, which according to the Court,
showed that the respondent had killed or raped the deceased.
The
Court stated further that:
'The
minute the s 112 statement was rejected and no admissions were made
regarding the contents thereof, it meant that the s 112
did not exist
anymore and the onus remained with the state to adduce admissible
evidence concerning the rape and stabbing of the
deceased. The state
having failed to do so, a conviction could accordingly not follow
based on the same s 112.'
[16]
S 113 of the
Act 51 provides:
'(1) If the Court at
any stage of the proceedings under s 112 (1)
(a)
or
(b)
or 112(2)
and before sentence is passed is in doubt whether the accused is in
law guilty of the offence to which he or she
has pleaded guilty or if
it is alleged or appears to the Court that the accused does not admit
an allegation in the charge or that
the accused has incorrectly
admitted any such allegation or that the accused has a valid defence
to the charge or if the Court
is of the opinion for any other reason
that the accused's plea of guilty should not stand, the Court shall
record a plea of not
guilty and require the prosecutor to proceed
with the prosecution:
Provided that any allegation, other than an
allegation referred to above, admitted by the accused up to the stage
at which the Court
records a plea of not guilty, shall stand as proof
in any court of such allegation
. (Emphasis added).
(2) If the Court records
a plea of not guilty under subs (1) before any evidence has been led,
the prosecution shall proceed on
the original charge laid against the
accused, unless the prosecutor explicitly indicates otherwise.'
[17]
The proviso to s 113(1) makes it clear that whatever admissions an
accused makes during the s
112 proceedings stands as proof thereof
before any court.
[4]
[18]
The adverse allegations that were admitted by the respondent in his s
112 statement, which 'stand
as proof in any court' of those
allegations were the following:
1.
The respondent went to a local shop and
informed Palesa that there was a work opportunity for a female person
where he recently
found employment.
2.
Palesa introduced him to the deceased who
accompanied him to the said work opportunity on 20 March 2017. They
could not find the
place.
3.
On their way back, they took a short-cut
through the bushes. The deceased had provoked him by accusing him of
playing games with
her and insulted him.
4.
He unlawfully and intentionally stabbed the
deceased, Y[...] F[…] S[…] with a knife.
5.
He then took her cell phone, which was
found at his place of residence.
6.
He could see that she was going to die from
the stab wound that he inflicted on her and left the scene only to
return the following
day where he set her body alight.
[19]
It follows that the trial court committed a misdirection of law by
disregarding the contents
of the s 112(2) statement. Consequently,
the first question reserved for decision must be answered in favour
of the state.
[20]
During cross-examination of the state witnesses, the defence did not
dispute that respondent
had murdered the deceased. The only issues in
dispute were whether the murder was premeditated and whether he had
raped her. The
trial was conducted on this basis, and the trial court
never indicated to the parties that the contents of the s 112
statement
would be disregarded in determining the guilt of the
respondent.
[21]
The allegations that were admitted by the respondent were
corroborated by the contents of the
post-mortem report. From this it
appeared that the body of the deceased had been burnt over the face,
anterior chest, pubic area
and both thighs. There was also a 1 cm
incised puncture wound with disembowelment.
[22]
The respondent elected not to satisfy. There was thus sufficient
evidence taken together with
his admissions that he had killed the
deceased and removed the cell phone from her body. By disregarding
this evidence the trial
court clearly erred.
[23]
The parts of the plea explanation that remained in issue concerned
the question whether the murder
was premeditated and whether the
respondent had raped and robbed the deceased. The state argued that
the evidence established that
the murder was pre-planned by the
respondent as no employment offer existed; that he lured the deceased
to a deserted area far
away from houses; that he had armed himself
with a knife and had tried to conceal evidence of the murder by
burning the body of
the deceased while she was still alive.
[24]
There was, however, no direct evidence, apart from his admissions, as
to what had transpired
before the deceased was stabbed. The state
therefore relied on the circumstantial evidence to establish
premeditation. But Palesa
Sibeko could only testify about how the
deceased met the respondent and how her cellphone was recovered from
the respondent. Nomvula
Mokwai could only testify that she was also
led to a house by the respondent where it later transpired that there
was no job offer
as promised by the respondent.
[25]
Dr Skosana conducted the initial post-mortem report and testified
that the deceased had head
injuries, a stab wound in the abdomen,
which led to the disembowelment and extensive burn wounds to the
body. He also testified
that the presence of carbon monoxide in the
blood sample taken from the deceased indicated that she was alive
when she was set
alight.
[26]
In his s 112 statement, the respondent stated that he returned to the
scene of the murder the
following day and set the body alight. The
state has failed to prove the charge of kidnapping and the charge was
correctly not
pursued by the state. Robbery could also not be proved
as there is no evidence to show that the respondent was aware that
the deceased
was alive when he took her cellphone. The
inference that respondent planned the murder of the deceased was
therefore not
the only inference to be drawn from the evidence. The
state had thus failed to prove beyond a reasonable doubt that the
murder
was premeditated and that the respondent had robbed the
deceased by taking her cell phone.
Question
2
[27]
The second question is whether the trial court correctly held that
the alleged verbal statement
made by the respondent to Capt. Magane,
an ex-officio justice of the peace, during the pointing out was
inadmissible merely because
it was not reduced to writing. This was
relevant to rape charge.
[28]
The respondent conceded, correctly, that the Court
a
quo
erred in holding that the statement made by the respondent to Capt
Magane that he raped the deceased was inadmissible because it
was not
reduced to writing. In terms of s 217 of the Act
[5]
,
a confession only needs to be reduced to writing when made to a peace
officer. The confession made to a magistrate or justice
of the peace
need not be reduced to writing. Captain Magane is
ex
officio
a justice of the peace.
[29]
The second point of law was therefore also correctly reserved and
ought to have been upheld by
the trial court. This means that the
verbal statement made by the respondent that he raped the deceased
was an admissible confession.
This confession does not take the
matter any further as there was no evidence
aliunde
to
show that the rape was committed.
[6]
In this regard, s 209 of the Act provides:
209 Conviction may
follow on confession by accused
'An
accused may be convicted of any offence on the single evidence of a
confession by such accused that he committed the offence
in question
if such confession is confirmed in a material respect or, where the
confession is not so confirmed, if the offence
is proved by evidence,
other than such confession, to have been actually committed.'
[30]
Further Dr Skosana testified that he was unable to express an opinion
on whether the deceased
was raped because of the state of
decomposition of the body. It follows that the state has failed to
prove that the respondent
had raped the deceased.
Questions
3 and 4
[31]
The third question was whether the trial court correctly conceived
and applied the legal principles
pertaining to circumstantial
evidence. The fourth was whether the trial court correctly considered
the totality of the evidence
in acquitting the respondent. Both
questions were not properly reserved questions of law as they require
this Court to inquire
into whether the trial court assessed the facts
correctly in arriving at its conclusion
[7]
.
They do not raise a question of law.
[32]
Corbett CJ in
Magmoed v
Janse van Rensburg and Others
[8]
held that a genuine question of law is whether the proven facts bring
the conduct of the accused within the ambit of the crime
charged.
Such a question involved an enquiry as to the essence and scope of
the crime charged by asking whether the proven facts
in the
particular case constitute the commission of the crime.
[33]
I am of the view that the third and fourth questions are questions of
fact, rather than law and
accordingly fall beyond the scope of what a
court of appeal may decide under s 319. That being the case, the
state's request must
be refused.
[34]
The following order is made:
(i)
The application for leave to appeal is
upheld in respect of the application for reservation of questions 1
and 2.
(ii)
The application for leave to appeal is
dismissed in respect of the application for reservation of questions
3 and 4.
(iii)
The application for leave to appeal against
the acquittal of the respondent on the murder and theft counts
is granted;
(iv)
The appeal against the acquittal of the
respondent on the counts of
murder (planned or premeditated), rape
and robbery is dismissed;
(v)
The appeal against the acquittal of the
respondent on the alternative
counts of murder (without planning
or premeditation) and theft is upheld;
(vi)
The order of the Court a quo is set
aside and substituted by the
following:
(a)
"The application by the state to reserve questions 1 and 2
as
questions of law is granted.'
(b)
The application by the state to
reserve questions 3 and 4 as
questions of law is
refused.
(c) The accused is
acquitted on the main counts of murder (with planning or
premeditation)
robbery and rape.
(d)
The accused is found guilty of murder and theft."
(e)
The matter is referred back to the trial court to consider an
appropriate sentence
__________________________________
K MATOJANE
ACTING
JUDGE OF APPEAL
APPEARANCES
For
appellant(s):
P
W Coetzer
Instructed
by: Director of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
For
respondent(s):
H Alberts
Instructed
by: Pretoria Legal Aid, Pretoria
Bloemfontein
Legal Aid, Bloemfontein
[1]
(1)
If any question of law arises on the trial in a superior court of
any person for any offence, that court may of its own motion
or at
the request either of the prosecutor or the accused reserve that
question for the consideration of the Appellate Division,
and
thereupon the first-mentioned court shall state the question
reserved and shall direct that it be specially entered in the
record
and that a copy thereof be transmitted to the registrar of the
Appellate Division.’
(2)
The grounds upon which any objection to an indictment is taken
shall, for the purposes of this s, be deemed to be questions
of
law.
(3) The provisions of ss 317(2)(4) and (5) and 318(2) shall
apply mutatis mutandis with reference to all proceedings under this
s.’
[2]
S
322 reads–
(1) In the case of an
appeal against a conviction or of any question of law reserved, the
court of appeal may-
(a)
allow the appeal if it thinks that the judgment
of the trial court should be set aside on the ground of a wrong
decision of any
question of law or that on any ground there was a
failure of justice; or
(b)
give such judgment as ought to have been
given at the trial or impose such punishment as ought to have been
imposed at the trial;
or
(c)
make such other order as justice may
require:
Provided
that, notwithstanding that the court of appeal is of opinion that
any point raised might be decided in favour of the
accused, no
conviction or sentence shall be set aside or altered by reason of
any irregularity or defect in the record or proceedings,
unless it
appears to the court of appeal that a failure of justice has in fact
resulted from such irregularity or defect.
[3]
DPP,
Western Cape v Schoeman and Another
[2019]
ZASCA 158
para 39. See also
Director
of public Prosecutions Natal v Magidela & Another
2000 (1) SACR 458
SCA
[4]
S
v Hendricks
1995 (2) SACR 177 (A).
[5]
217
Admissibility of confession by accused
(1) Evidence of any
confession made by any person in relation to the commission of any
offence shall, if such confession is proved
to have been freely and
voluntarily made by such person in his sound and sober senses and
without having been unduly influenced
thereto, be admissible in
evidence against such person at criminal proceedings relating to
such offence: Provided-
(a)
that a confession made to a peace officer, other than a magistrate
or justice, or, in the case of a peace officer referred
to in s 334,
a confession made to such peace officer which relates to an offence
with reference to which such peace officer is
authorized to exercise
any power conferred upon him under that s, shall not be admissible
in evidence unless confirmed and reduced
to writing in the presence
of a magistrate or justice; and
[6]
S
v Khumalo
1983(2)
SA 379 (A) 348B.
[7]
Director
of Public Prosecutions, Western Cape v Schoeman and
Another
[2019] ZASCA 158
;
2020 (1) SACR 449
(SCA) para 39. See also
Director
of Public Prosecutions: Limpopo v Molope and Another
2020]
ZASCA 69
;
[2020] 3 ALL SA 633
(SCA).
[8]
Magmoed
v Janse van Rensburg and Others
[1992] ZASCA 208
;
1993 (1) SA 777
(A).