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[1993] ZASCA 66
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S v Ndlovu and Another (250/91,16/92) [1993] ZASCA 66 (24 May 1993)
SAFLII Note:
Certain personal/private details of parties or witnesses have
been redacted from this document in compliance with the law and
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Policy
CASE NOS:
250/91 AND 16/92
IN THE
SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the
matter between:
SIMON
NDLOVU
1ST
APPELLANT
JACKIE
MASHEGO
2ND
APPELLANT
AND
THE
STATE
RESPONDENT
CORAM
BOTHA, VIVIER et GOLDSTONE JJ.A.
DATE
HEARD
:
14
MAY 1993
DELIVERED
:
24
MAY 1993
2
J U D G M
E N T
GOLDSTONE
JA
:
G.L.R.
("the deceased") and T.C.C.
("T.") were both 18 years of age
and
close friends. They lived with their respective
parents
in Witbank. On 29 June 1990 they decided to
purchase
dagga. They walked to the Spar Supermarket
where
they met Simon Ndlovu who is the first appellant
("No
1"). It was the first time T. had met him. It
would
appear, however, that the deceased had had previous contact with him.
After sharing a dagga cigarette with No 1, they arranged
to meet him
at the
3
same
place on the following morning at 10:00. He would
then
sell to them R10 worth of dagga. That evening the deceased slept at
T.'s home. On the Saturday morning
they
awoke later than planned and decided that the
deceased
alone would keep the appointment with No 1.
They
agreed to meet at the home of the deceased at 13:00,
However,
the deceased did not arrive at her home as
arranged.
At about 19:00 T. alerted the police and a
search for the
deceased was launched. Early the
following
morning the deceased's body was found. It had
been
concealed in tall grass in an open field between the
Spar
Supermarket and the R12 highway. She had been raped
and
severely assaulted. Whilst the medical evidence was
not
conclusive, the probable cause of death was strangulation.
No
1 and Jackie Mashego, who is the second
appellant
("No 2"), were charged with the murder and rape
of
the deceased. They appeared before Esselen J and two
4
assessors
in the East and South-East Circuit Local
Division. They were found guilty as charged. In
respect of the murder both appellants were sentenced to death. For
the rape they were each sentenced to
imprisonment
for 18 years. Both appellants now appeal to
this Court against the convictions and sentences.
On the
afternoon of 2 July 1990, No 1 was arrested by the police. Shortly
after 15:00 on the
following day
he made a statement to a magistrate, Mrs
M.J. Venter. He was recorded as having said the
following:
"Ek
en ene 'Jackie' het 'n blanke meisie
verkrag.
Daarna het
'Jackie' haar verwurg.
Beide
van ons het die blanke meisie verkrag.
Die
meisie het my naam gevra en ek het haar my regte naam gesê. Ek
het vir 'Jackie' gemaan om
haar
nie te verwurg nie, want die meisie is nie
moeilik nie. Hy het
gese die meisie ken my
naam en
sy sal 'n klagte maak. Dit is al. Ek
wil niks verder se nie."
5
No
1 sought to attack the admissibility of the
statement
on the ground that it was not made freely and
voluntarily.
He stated, during a trial-within-a-trial,
that
after his arrest on 2 July 1990 he was repeatedly
assaulted.
His thumbs were tied together, he was punched and kicked and a tooth
was knocked out. On the following day he was again
assaulted,
repeatedly and seriously. He
was
taken to a magistrate, He told her he had been
assaulted
and she declined to take a statement from him. Thereafter he was
assaulted yet again. He was taken back
to
the magistrate and she recorded the statement. All
the
relevant police officers testified and denied that No
1
was assaulted. It was the evidence of the magistrate,
Mrs
Venter, however, that effectively destroyed the
version
of No 1. He was brought to her only once. He
complained
that he had been hurt by his handcuffs. She
noticed
scratch marks on his thumbs. She saw no other
visible
injuries. For good and adequate reasons the
6
trial
Court accepted the evidence of Mrs Venter and that
of
the police officers. In the result the version of No
1
was rejected as false and it was held that he had
failed
to discharge the burden of proving that the
statement
had not been made freely and voluntarily. No sound reason for
interfering with that conclusion was
suggested
by counsel for No 1. I cannot find one.
On
4 July 1990, the two appellants separately
pointed
out spots in the field where the body of the deceased was found.
During the course of the pointings
out
they each made confessions. Lieutenant D J Krugel
recorded
that No 1 pointed out a spot where "Ons haar
opgeklim
net". With regard to another spot he said "Ons
het
haar hier gebêre".
During
the course of the pointing out by No 2,
Lieutenant A Bezuidenhout recorded that he said:
"Ons
het haar hier gegryp en toe verkrag.
Simon
het haar eerste verkrag. Toe ek haar
klaar
verkrag het, het ons haar mond toegedruk
7
en
haar verwurg. Ons net haar opgetel en gaan
weggooi."
The
statements of both appellants were made in
Zulu
and they were interpreted to the respective police
officers.
There is no suggestion that either of the
police
officers understood Zulu. They recorded the
Afrikaans
translations of the interpreters, Detective
Warrant
Officer Kgotsoko and Detective Constable Mashile,
respectively.
Neither of the interpreters testified.
The
question which arises is whether it was proved by the State that
either of the appellants told the interpreters
what the
respective police officers recorded. Put
another
way, was it proved that the interpreters had
accurately
interpreted the words of each of the appellants?
In
R v Mutche
1946 A.D. 874
at 875, it was said
by Davis AJA to be -
8
"...
axiomatic that what has been said through
an interpreter to
someone who does not understand the language interpreted is
ordinarily merely 'hearsay', if
deposed to only
by that person."
Later, at
878, the learned Judge continued:
"It
seems to me clear that it is sufficient if
B,
the interpreter, deposes to the fact that he
interpreted
correctly all that was said to him
by A, and if C, the person
to whom he
interpreted, then
deposes to what B, the
interpreter, said at the time. For here
we
have no hearsay. ... The
interpreter deposes
to a
fact within his own knowledge, namely that he interpreted correctly;
the person to whom he
interpreted
also deposes to a fact within his
own
knowledge, namely what the interpreter told
him.
The sum of the evidence of B and C, each
speaking
from his own knowledge, proves what
was
said by A. And this is the usual practice
in South Africa."
9
That
practice has continued to this day. In R
v
Mutche
, the absence
of the relevant evidence from the
interpreter
was held by this Court to be fatal to the
admissibility
of the words recorded by the person to whom
the statement was
being interpreted. Unless the
statements
in the present case can be admitted on some
other
basis, the failure to have called the interpreters
renders
them inadmissible.
Mr
Malan, who appeared on behalf of the State both in the trial Court
and before this Court,
submitted
that it was not open to the appellants to raise
this
objection because during the trial the correctness
of
the interpretation of the statements was not placed in
issue.
However, there was no obligation upon them to
have
done so. Their pleas of not guilty placed in issue
every
fact necessary for the State to prove in order to
establish
their guilt. In
R v
Kaplan
1942 OPD 232
at
237, Van den Heever J said:
10
"If,
to prove a relevant fact, evidence is
tendered
and received which is not receivable
for
that purpose, I cannot see how the omission
on
the part of the defence directly to impugn
it can alter its
nature."
See, too:
R v K
1951(3) SA 180 (SWA) at 183B;
R v C
,
1955(1)
SA 380(C) at 383 A - C. In any event, in a case
such as the
present, the appellants' counsel were
entitled
to assume that the State would call the two
interpreters.
Only when the State case was closed could
they
have known that they would not be called. At what
stage
prior thereto could counsel have been expected to
have
challenged the accuracy of the interpretation of the
statements
made by the appellants? This submission must
be rejected.
Then
it was submitted by Mr Malan that during the course of the trial it
had been informally agreed
between
himself and counsel for the appellants that it
11
would
not be necessary for the State to call either of
the
interpreters to testify. Counsel for No 1, who also
appeared
at the trial, informed us that he had no
recollection
of such an agreement. Counsel who appeared
for
No 2 at the trial did not appear for him in this Court. We were
informed that he no longer practises as
an
advocate. Without in any way questioning the accuracy
or
correctness of Mr Malan's recollection, it would not
be open
to this Court to hold that the agreement
contended
for by Mr Malan had been concluded. The record
is
silent and there is no agreement between counsel who
appear
in this Court. In any event it is a wholesome r
ule
of practice that admissions must be formally made
and
recorded in terms of
s220
of the
Criminal Procedure
Act
51 of 1977
:
S v Maweke
and Others
1971(2) SA
327 (A)
at 329 E -F. In
that judgment at 329 F - G, Miller AJA
said:
12
"Where
such an admission has not been recorded,,
it
is questionable whether, in the absence of
proper amendment or
reconstruction of the
record in
the approved manner, the Court, on appeal, is entitled to take
cognisance of the
fact
that an admission was made, even where the
State
and the appellants have agreed on that
score,
unless they have also agreed on the
precise terms of the
admission."
As
I have already pointed out, in the present case there is no agreement
as to whether any admission
was
made at all, let alone on the precise terms of the
admission.
This submission, therefore, must also fail.
Finally,
on this issue, Mr Malan submitted that during his evidence during the
trial-within-a-trial, No 2
made
a direct or implied admission that he told the
interpreter
what appears in the statement as recorded by
Lieutemant
Bezuidenhout. (No such submission was or
could
successfully have been made with regard to the evidence of No 1). The
passages in the evidence of No 2
13
to which
Mr Malan referred were those in which No 2
explained how he had been assaulted and told what spots to point out
to Lieutenant Bezuidenhout and what to say
concerning them. In particular he was told to say that
he and
No 1 raped and strangled the deceased. The
following question and answer during cross-examination
were relied on:
"En
het u toe vir die polisie verduidelik soos
wat
dit gebeur het? - Ek het gedoen soos hulle
my
voorgese het, want ekself het niks geweet
nie,
want ek het gesit en wag vir hulle."
In
other words, the submission is that in effect No 2
stated
that he informed the interpreter that he and No 1
had raped
and strangled the deceased.
Even
if this evidence raises a probability that
No
2 told the interpreter that he and No 1 raped and
strangled
the deceased, in my opinion that cannot be
found
proven beyond a reasonable doubt. No 2 in no way
14
stated in
terms what precisely he said to the
interpreter.
In this case it is of cardinal importance
for
the Court to know what presisely was said by the
appellant.
For all we know he may have attempted to
place
the blame on No 1 and to exculpate himself. Put
briefly,
the admission made many months later that he
told
the interpreter what he was told by the police to
say
is not a sufficient or cogent basis for holding, with
the
necessary degree of proof, what precisely he did say
on that
occasion to the interpreter.
As was
pointed out during argument, the
provisions
of
s3(l)
of the
Law of Evidence Amendment Act
45
of 1988
cannot assist the State in this case. The
only
relevant provision is
s3(l)(c).
Even if the
circumstances
and considerations referred to in sub
paragraphs
(i) to (vii) thereof might have justified the
admission of the
hearsay evidence of Lieutenant
Bezuidenhout
(which is open to serious doubt), the trial
15
judge
would have been called upon to exercise a judicial
discretion
as to whether such evidence should have been
admitted
in the interests of justice. Because he was not
asked
to exercise such a discretion it is not open to
this
Court, on appeal, to exercise its own discretion.
It
follows that the statements made by No 1 to Lieutenant Krugel and by
No 2 to Lieutenant Bezuidenhout
were not properly proved in
evidence and must be disregarded.
Mr
Malan properly conceded that there was no
other
admissible evidence against No 2. The statement of
No
1 implicating No 2 is, of course, not admissible evidence against
him. It follows that- the convictions
and
sentences in respect of No 2 must be set aside.
As
far as No 1 is concerned there remains the
statement
he made to the magistrate. In it he admitted to
having
raped the deceased. Added to that is the evidence
of
T. which established contact between No 1 and the
16
deceased
on the day and in the vicinity of the place
where
she was raped and strangled. In my opinion,
therefore,
there was proof beyond a reasonable doubt that
No
1 was guilty of rape and the appeal against that conviction must
fail. There was no admissible evidence
against
No 1 justifying his conviction for the murder of
the
deceased. That conviction and the sentence therefor
must be
set aside.
It
remains to deal with the sentence of 18
years'
imprisonment imposed on No 1 for the rape. At the time of the offence
he was about 26 years of age. He has
no
previous convictions. There was no proof as to the
degree
of force which was used by No 1 or of the injuries
inflicted
directly by him. On the other hand, an
aggravating
feature is that, on the admission of No 1,
the
rape was committed by two men. Their victim was a
helpless
young woman. In these circumstances I would
have
imposed a sentence of 12 years' imprisonment. The
17
disparity
between that sentence and the one imposed by
the
trial Court is such as to justify interference by
this Court.
The
following order is made:
The
convictions of the first appellant and the
second
appellant on the charge of murder and
the
sentences of death imposed therefor are set
aside.
The
appeal of the first appellant against the
conviction
for rape is dismissed. The sentence
therefor is set aside and
replaced by a
sentence of 12
years' imprisonment.
The
conviction of the second appellant on the
18
charge
of rape and the sentence of 18 years'
imprisonment
imposed therefor are set aside.
JUDGE OF
APPEAL
BOTHA JA)
VIVIER JA)
CONCUR