About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1993
>>
[1993] ZASCA 93
|
|
S v Mlomo (581/91) [1993] ZASCA 93; [1993] 2 All SA 484 (A) (2 June 1993)
REPORTABLE Case No 581/91
/wlb
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
FUNANI MLOMO
Appellant
and
THE
STATE
Respondent
CORAM
: E M GROSSKOPF, MILNE JJA et NICHOLAS
AJA
DATE OF HEARING
: 25 May 1993
DATE OF
JUDGMENT
: 2 JUNE 1993
J U D G M E N T
/MILNE JA
2
MILNE JA:
With leave of the trial court the appellant appeals against his
convictions on three counts of murder and one count of assault with
intent to do
grievous bodily harm, and against the sentence imposed on one of the murder
counts. The counts on which he was convicted
of murder were counts one, four and
six and the assault charge was count seven. On count one he was charged with the
murder of Phakamisa
Thompson Sikoki ("Sikoki"), on count four with the murder of
Mbuyiseli Zenzile ("Zenzile") and on count six with the murder of Vuyane
Gladman
Nxati ("Nxati"). On count seven it was alleged that the appellant had stabbed
one Bongwane Mgqobele ("Mgqobele"). The offences
alleged in counts 1 and 4 were
said to have been committed on or about 28 December 1987 and near Tjoksville and
the offences alleged
in counts six and seven on or about 3 June 1990 and at
Goliath Street KwaNobuhle.
3 On counts one and four the appellant
was
sentenced in respect of each count to 9
years' imprisonment of which 6 years were to run concurrently with the sentence
of 14 years'
imprisonment imposed in respect of count six. A sentence of 2
years' imprisonment on count seven was also ordered to run concurrently
with the
sentence on count six. The effective sentence was therefore one of 20 years'
imprisonment.
The identity of the three deceased was admitted. The
medical evidence established that Sikoki's neck was slit from side to side, the
jugular vein and carotid arteries having been severed on both sides, that he had
been stabbed in the right eye and twice in the abdomen
causing extrusion of the
bowel in each case. These were only some of the injuries, there being a total of
sixteen altogether. There
were seven injuries to the body of Zenzile, but apart
from a 15 mm superficial nonpenetrating incision on the left side of his neck,
there were no injuries to his neck and there were no injuries
4 to
his abdomen and no injuries to either of his eyes.
On count one the State adduced the evidence of one Vumile Teyse
("Teyse"). He testified to an encounter between the appellant, one
Kwekwe and
Mayo on the one hand and the deceased Sikoki on the other, which he said took
place on 28 December 1987 in a shebeen ("smokkel-kroeg").
On that date,
according to Teyse, he was in a shebeen when the deceased arrived. He was
followed by the appellant, Kwekwe and Mayo.
The latter three were members of the
UDF and they asked the deceased what he was doing there and accused him of being
a member of
Azapo. The deceased denied this and Mayo then said to the deceased
that a man like him should not be shot with a gun because it would
be a waste of
a bullet and that a knife should be used instead. The appellant and his
companions left the shebeen with the deceased.
Teyse and a friend of his
followed them to a clinic. There the appellant summoned other persons in the
vicinity and
5
Teyse and his friend then decided to go and tell
the
parents of the deceased that the deceased had been taken away because his
abductors thought he was a member of Azapo. Teyse did not
see the deceased
again.
There was also evidence from one Ngxonono to the effect that he saw the
deceased being taken by about eight people in the direction
of a kloof where the
body of the deceased was later found.
On count four the State adduced the evidence of Zongesile Klaas ("Klaas")
who testified to an encounter between the deceased Zenzile
and the appellant
which took place not in a shebeen but in a house. The evidence of Klaas was to
the effect that a number of persons
including the appellant, Kwekwe, Tase, Kwa
and others broke into the house where Klaas and the deceased Zenzile were
playing cards.
Zenzile was stabbed in the house by Kwekwe, Tase and Kwa and he
was then taken out
6
and further stabbed outside the house. The
complainant on
count five was called out of the house by the appellant and he was
stabbed outside the house. (This complainant was apparently also
known as
"Small").
On counts six and seven the State adduced the evidence of Wandisile
Nqakula ("Nqakula") and of Mgqobele. I shall deal with their evidence
at a later
stage.
The State also tendered evidence of a statement made by the appellant to
a certain Captain Van der Sandt on 20 July 1988 and the record
of the
proceedings held in terms of section 119 of Act No 51 of 1977 ("the Act"). I
shall refer to these proceedings as "the preliminary
proceedings". A trial
within a trial was held to determine the admissibility of the statement to Van
der Sandt. The statement was
held to be inadmissible because the Court was
uncertain whether the appellant had been
7
induced by threats or undue influence on the part
of the
police to make the statement. I shall deal more fully in due course with
the findings of the Court which led to this conclusion. It
is necessary to do so
because this ruling and the findings of the Court upon which it is based, are
said to be relevant either to
the admissiblity or the weight to be attached to
certain admissions made by the appellant in the course of the preliminary
proceedings.
The admissions made by the appellant in the course of these proceedings
are of great importance to the State case - indeed, for reasons
which will
become apparent, they are vital to the success of the State case on count
four.
According to one Sgt Dicker the appellant was arrested on 20 July 1988.
He made the statement to Captain Van der Sandt the same day
and the
preliminary
8
proceedings commenced on the following day. After
he had
been joined as Accused No 9 in those proceedings three
charges were put to the appellant. The first charge was that of murdering
Zenzile.
This was alleged to have occurred on 28 December 1987 at or near
Tjoksville and it was alleged that the deceased had been assaulted
"... deur hom
keel af te sny en horn sodoende sekere dodelike wonde of beserings toegedien het
. ..". (The reference to the deceased
Zenzile's throat having been cut was in
fact incorrect). The second charge related to the murder of Sikoki which was
alleged to have
been committed on the same date and at the same place and this
also includes an allegation that the deceased was assaulted "... deur
hom keel
af te sny en hom sodoende sekere dodelike wonde of beserings toegedien het ...".
The third was a charge of attempted murder,
being a charge that the appellant
had attempted to murder one John Lucas by stabbing him with a knife. This
appears to relate to
the complainant on count five in respect of which the
appellant was found
9
not guilty. When these three charges were put to
the
appellant he pleaded guilty to both the murder charges and not guilty to
the charge of assaulting Lucas.
The magistrate then proceeded to question the appellant in terms of
section 112(1) (b) of the Act. He questioned him firstly with
regard to the
first charge and I reproduce in full the questions and answers which were given
with regard to this particular charge.
"V: Is jy gedreig of beinvloed om skuldig te pleit?
A: Ja, die polisie het my gedreig om skuldig te pleit. Hulle het gese ek
moet die aanklagte teen my erken. Ek was egter teenwoordig
toe die voorval
plaasgevind het. Ek en Qua en Kweke het egter elk 'n mes gehad en ons het toe
die oorledene se keel afgesny -
V: Watter polisieman het jou gedreig?
A: Ek ken nie hulle name nie.
V: Wat het hulle aan jou gedoen?
A: Niks nie. Hulle het my nie geslaan nie. Hulle het net gese ek moet erken
dat ek die misdaad gepleeg het.
V: Is jy vandag bang of voel jy bedreigd?
A: Nee.
V: So, nieteenstaande die feit dat die polisie gese het dat jy moet erken
dat jy die misdaad gepleeg het, erken jy vandag
sonder dat die polisie
teenwoordig is
dat jy die misdaad
10
gepleeg het? [My emphasis.] A: Ja. V: Is jy
doodseker dat jy wil skuldig pleit en dat
jy wel die oorledene se
nek afgesny het? A: Ja.
V: Was jy op 28/12/87 in Tjoksville,
Uitenhage? A: Ja.
V: Was jy alleen? A: Nee, ek en Qua en Kwekwe,
Mayo, Sandile,
Pumelelo en nog 'n ander persoon was
teenwoordig. V:
Waar het julle die oorledene ontmoet? A: Ons was in 'n smokkelkroeg en toe het
die
oorledene daar ingekom. Toe hy ons opmerk, het
hy
die smokkelhuis verlaat en weggehardloop. V: Het julle die oorledene agtervolg?
A: Ja.
V: Tot waar het julle hom agtervolg? A: Tot anderkant 'n
erf.
V: Het julle die oorledene ingehaal en gevang? A:
Ja.
V: Wie het die oorledene gevang? A: Ons almal.
V:
Hoekom het die oorledene weggehardloop? A: Omdat hy aan AZAPO behoort en al van
ons by ons
huise gesoek het. V: Behoort jy aan 'n groep? A:
Ja.
V: Watter groep? A: UYCO.
V: Ken jy die oorledene?
A: Ja. V: Toe julle die oorledene vang, wat het julle toe
met horn
gedoen? A: Ons het hom geneem na 'n bos. V: Erken jy dat die oorledene se naam
is Mbuyiseli
Zenzile? A: Ja.
11
V: Hoe het julle die oorledene na die bos geneem?
A: Que en Pumelelo het oorledene aan sy lyfband
vasgehou terwyl ons
na die bos gestap het. V: Hoe ver is die bos van die plek waar julle
hom
gevang het? A: Ongeveer 200 meter.
V: Het die
oorledene geworstel en hom teegesit? A: Ja. V: Wie het gese julle moet oorledene
na die bos
neem? A: Ons almal saam het so besluit. V: Waar het julle
so besluit dat julle oorledene
na die bos moet vat? A: Terwyl ons so
gestap het het ons so besluit. V: Het julle besluit terwyl julle so stap
met
oorledene dat julle horn in die bos gaan
doodmaak?
A: Ja.
V: Wie het so besluit? A: Ons almal saam. V: Wat het julle
toe met oorledene in die bos
gedoen? A: Ons het oorledene eers gevra
wie van hulle
groep se lede het van ons groep se lede
vermoor. V:
Het hy iets gese? A: Ja, hy het gese dat hyself betrokke was
asook
Xoliswa en Ace, Kana se jonger broers. V: Wat gebeur toe? A:
Ons het horn gevra of hy weet hoeveel van ons
lede hulle gedood het
en hy het gese dis baie. V: Wat doen julle toe? A: Ek, Qua, Kwe en Kayo het toe
die oorledene
begin steek met messe. V: Watter tipe mes het jy gehad? A: 'n Scotts
knipmes.
V: Watter tipe messe het die ander gehad? A: Okapies en
vismesse.
12
V: Met julle almal messe gehad?
A:
Ja.
V: Wie het gese julle moet oorledene steek?
A: Ons
het oorspronklik besluit dat ons hom moet
steek. V: Waar op sy
liggaam het jy die oorledene
gesteek? A: Op sy nek.
V:
Hoeveel keer het jy hom op die nek gesteek? A: Twee keer. V: Het Qua, Kwe Kwe en
Kayo ook die oorledene raak
gesteek? A: Ja.
V: Waar op
sy liggaam? A: Oral op sy liggaam. V: Het die oorledene toe geval? A:
Ja.
V: Wat gebeur toe? A: Pumelelo en Tasi het toe die oorledene se
maag
oopgesny met hulle messe. V: Toe Pumelelo en Tasi oorledene se
maag oopsny,
wat gebeur toe? A: Die derms het uit oorledene se maag
gepeul. V: Wat gebeur toe?
A: Pumelelo het toe oorledene in die
oë gesteek. V: Het jy toegekyk terwyl die oorledene se
maag
oopgesny word en hy in die oë gesteek word? A:
Ja.
V: Wat gebeur toe? A: Ons het die oorledene net daar gelos
en
geloop. V: Het die oorledene gebloei? A: Ja. V: Toe julle die oorledene
verlaat, was hy reeds
dood? A: Ja. V: Erken jy dat jy bedoel het om die oorledene te
dood?
13
A: Ja.
V: Met jy inderdaad voorsien
en besef dat jy die
oorledene kan dood om tesame met ander mense
die
oorledene met messe te steek? A: Ja.
V: Is die oorledene se keel
afgesny? A: Ja.
V: Erken jy dat die oorledene 'n swartman is? A: Ja.
V: Erken jy dat die oorledene op 28/12/87 oorlede
is te Tjoksville a.g.v. die wonde en beserings
wat jy en die ander persone die oorledene
toegedien
net? A: Ja. V: Erken jy dat oorledene geen verdere beserings
opgedoen net vandat die lyk vanaf die toneel
vervoer is en totdat daar 'n lykskouing op
die
oorledene uitgevoer is nie? A: Ja.
V:
Het jy geweet jy doen verkeerd? A: Ja.
V: Het jy enige reg gehad om
so op te tree? A: Nee.
U 22/7/88 vir verdere ondervraging I/H
polisieselle, Uitenhage.
(Get.) D.S. CLAASSEN 21/7/88
Op 22/7/88
:
Verskynings soos op 21/7/88
Op 22/7/88
:
Verskynings soos voorheen. Beskuldigde 9 teenwoordig.
Verdere ondervraging deur die hof ingevolge Artikel 112(1)(b) Wet 51/77
t.o.v. aanklag 1 volg: V: Het die voorval in die dag of in
die nag
plaasgevind? A: In die dag. V: Hoekom het die ander persone die oorledene
in
14
die oë gesteek? A: Ek weet nie.
Verrigtinge word op aanklag 1 gestaak hangende P.G.
beslissing."
The magistrate then questioned the
appellant in terms of
the same subsection on the second charge and I
set out in
full the questions and answers in this regard.
"V: Was jy op 28/12/87 in Tjoksville, Uitenhage?
A: Ja.
V: Was jy alleen?
A: Nee, ek en Qua en Kwe Kwe, Kayo,
Sandilo,
Pumelelo en nog 'n ander persoon was
teenwoordig.
V: Waar het julle die oorledene ontmoet?
A: Hy was in 'n huis te Tjoksville.
V: Het julle in die huis ingegaan?
A: Ja.
V: Wat het julle toe in die huis gedoen?
A: Ons het vir Mbuyiseli en 'n ander
persoon,
Small, in die huis gekry.
V: Wat gebeur toe?
A: Ons het beide die persone na buite gevat.
V: Wat het buite gebeur?
A: Ons het albei die persone buite die
huis
gesteek met messe.
V: Vir wie het julle eerste gesteek?
A: Vir Mbuyiseli.
V: Het jy vir Mbuyiseli raakgesteek?
A: Ja.
V: Waar op sy liggaam?
A: Op sy lyf.
V: Hoeveel keer het jy horn gesteek?
A: Twee keer.
V: Het die ander persone wat saam met jou was, ook
15
messe gehad? A: Ja, messe en pikstele. V: Het die
ander persoon wie [sic] saam met jou
was, ook vir Mbuyiseli gesteek?
A: Ja.
V: Het Mbuyiseli geval? A: Ja. V: Is Mbuyiseli dieselfde
persoon as die oorledene
in aanklag 1? A: Nee.
V: Het
julle toe vir Small met messe gesteek? A: Ja.
V: Hoeveel keer het jy
vir Small gesteek? A: Nee, ek het hom nie gesteek nie, ek het hom
net
geslaan met die piksteel. V: Het jy 'n piksteel ook gehad? A:
Ja. V: Hoeveel keer het jy vir Small met die piksteel
geslaan? A:
Twee keer op sy lyf en hy het toe
weggehardloop. V: Het van die
ander persone ook vir Small gesteek
met messe? A: Ja, slegs Kwe Kwe
het hom gesteek. V: Wat het toe gebeur? A: Small het toe weggehardloop. V: Waar
was Mbuyiseli toe
Small weggehardloop
het? A: Hy het op die grond
gele.
V: Het Mbuyiseli stil gele op die grond of nie? A: Hy het nog
geroer. V: Het hy gebloei? A: Ek weet nie. V: Is Mbuyiseli dieselfde
persoon as
Pakamisa
Sikoki? A: Ek weet nie. V: Was beide persone swartmans? A:
Ja.
16
V: Hoekom het julle die twee persone so
aangerand? A: Hulle is lede van die AZAPO groep. V: Wie het gese julle moet
die oorledenes gaan
haal? A: Niemand nie - ons het gegaan om te gaan
drink
en toe het on[s] 'n lig in die huis
sien brand
en toe ingegaan. V: Weet jy of Small oorlede is? A: Nee.
V: Jy weet ook nie wat Small se naam is nie? A:
Nee."
The magistrate then recorded a plea of not
guilty:
"... aangesien die hof nie oortuig is dat beskuldigde erken dat die persoon
wie [sic] hulle aangerand het inderdaad oorledene is nie
en ook omdat
beskuldigde nie weet of die persoon wie [sic] hulle aangerand het, dieselfde
persoon as die oorledene is nie."
Counsel
for the appellant, to whom we are
indebted for his assistance, mounted a threefold attack
on
the admissibility of the record of the preliminary
proceedings. It
is common cause that when these
proceedings commenced the appellant
was informed neither
of his right to legal representation nor of his
right to
apply for legal aid. It was submitted that this amounted
to an irregularity resulting in a failure of justice.
17
That was the first leg of the attack. The second
was
that the State had failed to discharge the onus of showing that the
admissions made by the appellant at the preliminary proceedings
were made
voluntarily. The third leg was that ex facie the record of those proceedings,
the admissions that the appellant had made
with reference to Zenzile had been
applied to the charge in respect of the murder of Sikoki and vice
versa.
I deal with the lastmentioned submission first. It is quite apparent from
the record of the preliminary proceedings that at that stage
the appellant did
not know the name of the first deceased and that he knew the second deceased as
Mbuyiseli. It is also apparent
that he was intending to describe two murders
that he was involved in, each of which occurred on 28 December 1987 and each in
the
Tjoksville area. One of these murders which he describes clearly relates to
Sikoki and the other which he describes clearly relates
to Zenzile.
18
Notwithstanding the error in the charge earlier
referred
to with regard to the injuries suffered by Zenzile, it is
abundantly apparent, in my view, that when the appellant was being questioned
with regard to what was count one in the Magistrate's Court proceedings he was
referring to Sikoki and not Zenzile. There were injuries
to the eye and stomach
on Sikoki which were clear and distinctive and there were no such injuries on
Zenzile. There was a literal
cutting of the throat of Sikoki and there was no
such injury but only a superficial wound to the neck of Zenzile. When describing
the second murder he correctly named the deceased as Mbuyiseli but apparently
did not know the surname was Zenzile. Furthermore,
as already stated, the
identity of the deceased was expressly admitted at the commencement of the trial
in the court a quo. There
is accordingly no substance in this line of
attack.
I deal now with the effect of the failure of
19
the magistrate to advise the appellant of his
right to
legal representation and to seek legal aid at
the
commencement of the preliminary proceedings. He
should
have been so advised. In S v Mabaso & Ano 1990(3) SA
185
(A) at 204G it was held that the magistrate's failure to
inform the appellants of their right to representation
before
they pleaded would amount to an irregularity only
if the appellants were shown to have been ignorant of
that
right. In S v Rudman & Ano; S v Mthwana 1992(1) SA
343 (A) at
391G Nicholas AJA said in this regard:
"I am inclined to think that the better view is that a failure to inform an
accused of his right to representation is an irregularity
unless it is apparent
to the magistrate, for good reason, that the accused is aware of his rights (eg
from his own statement or from
the circumstances - for instance, that the
accused is an attorney}. Certainly it is the safer course always to inform the
accused
of his rights."
The learned Judge then went on
to say that it was for the
appellant to show that the failure of
justice resulted
from the irregularity and that he could have done
so, for
example, by submitting to the Court of Appeal and to
the
20
magistrate for his comments an affidavit setting
out that
he was unaware of his rights, and that if he had been
informed of them he would have tried to secure representation, at least through
the Legal Aid Board. There was no such affidavit before the Court of Appeal, and
consequently it had not been shown that the irregularity
resulted in a failure
of justice. Counsel for the appellant submitted that Mabaso's case had been
wrongly decided. While I still
firmly adhere to the dissenting view which I
expressed in Mabaso's case, I would certainly not be prepared to hold that the
view
of the majority was plainly wrong and, what is more, the line of reasoning
followed by the majority in Mabaso's case was, as appears
from the above
passage, followed in Rudman's case. It was therefore necessary for the
appellant's counsel to argue that Rudman's
case was also wrongly decided but he
was unable to advance any cogent grounds for such a submission. The reasoning of
the majority
in Mabaso's case accordingly states the law on
21
this subject. It was there held that the failure
to
inform the accused of his right to legal representation could not render
inadmissible the admissions made at section 119 proceedings
any more than such a
failure would render inadmissible a pointing out by him or a confession made to
a magistrate (at p 209A-E).
Nor, so it was held, is it unjust or inequitable
that this should be so (at p 209F-G). The appellant's argument must therefore be
rejected.
The remaining line of attack however presents more difficulty. Statements
made by an accused person at section 119 proceedings may
be attacked on the
ground that-they were made as a result of duress. S v Shabalala 1986(4) SA 734
(A) at 746G-I. Furthermore, it
seems to be the position that the onus is on the
State and that if there is a reasonable possibility that an accused person made
the particular statements in question as a result of duress then their weight is
"neutralised". Shabalala's
22
case at 746I - 747C. True, this was conceded by
the
State in that case and the Court assumed that to be the position
without going so far as to decide that it was the position. I shall
however make
a similar assumption in this case. On that basis the State is confronted with
the difficulty that the trial court found
that the State had not discharged the
onus of proving that when the appellant had made a statement to Capt Van der
Sandt the day
before, that is to say 20 July, he did so without being unduly
influenced thereto. Furthermore, the appellant gave evidence at the
trial within
a trial and in the course of that evidence he said firstly, that Sgt Dicker had
told him to repeat to the magistrate
what had been recorded in a statement which
he, the appellant, had made the preceding day to Sgt Dicker, and which was in
similar
terms to the statement he made thereafter to Capt Van der Sandt. He said
furthermore, that Sgt Dicker had come into court during
the questioning by the
magistrate in terms of section 112(1) (b) in relation to the first
23
charge at the stage when he had just said that he
had
pleaded guilty as a result of being threatened, and, so he said,
it was for that very reason that he then changed his tune and said
that he
wished to plead guilty in spite of the threats. Had the appellant repeated this
evidence when the trial proper recommenced
after the trial within a trial there
would have been considerable cogency in this argument. He did not do so. In
fact, the only evidence
given by the appellant was at the trial within a trial
which was held in order to determine the admissibility of the statement which
he
made to Capt Van der Sandt. When the record of the preliminary proceedings was
put in no objection was taken thereto by the appellant's
counsel on the ground
that the statements made at those proceedings were not freely and voluntarily
made. That aspect of the matter
was canvassed when Dicker was once again called
as a witness in the trial proper, but Dicker said that he had not threatened the
appellant in any way nor applied any pressure on him to
24 plead
guilty and that he had not been present at any
stage during the preliminary proceedings. Although he
could
not be certain on this point the magistrate
conducting those
proceedings said in his evidence that it
was his impression that he
could not have put the
following question to the appellant had Dicker been
present
in court at the time:
"So, nieteenstaande die feit dat die polisie gesê het dat jy moet
erken dat jy die misdaad gepleeg het, erken jy vandag
sonder dat die polisie
teenwoordig is
dat jy die misdaad gepleeg het? A: Ja." (My
emphasis.)
Evidence was also adduced from the sergeant
in charge of
the cells at the court where the preliminary proceedings
took place, to the effect that the appellant had not, as
suggested in the cross-examination of Dicker by the
appellant's counsel, been taken out by Dicker during the
day when those proceedings took place. It is clear that
what an accused person says at a trial within a trial may
not be used against him on the merits. S v De Vries
1989(1) SA 228 (A) at 233D - 234G. It is also clear that
25
the accused is not entitled to rely on such
evidence when
it comes to the merits. De Vries's case at 234A-B and S
v
Sithebe 1992(1) SACR 347 (A) at 349a - 351e. Counsel
for the appellant however referred to the as yet
unreported
decision of this Court in Mjikwa v Die Staat
(Case No 37/1992 in which judgment was delivered cm 4
March
1993) and in particular the following passage in
the judgment:
"In sy betoogshoofde het die respondent [the State] se advokaat aangevoer
dat die getuienis van die appellant in die tussenverhoor
buite rekening gelaat
moet word by ' n beoordeling van die 'meriete' van die saak, en bepaaldelik die
al of nie vrywilligheid van
die aanwysings. Voor ons het hy nie met hierdie
argument volhard nie. En tereg so. Al wat ek hoef te se, is dat die kwessie van
die
toelaatbaarheid van 'n aanwysing net so min as die van die toelaatbaarheid
van 'n bekentenis op die meriete van ' n saak betrekking
het. Getuienis wat
tydens ' n tussenverhoor gegee is, kan dus in aanmerking geneem word by
beslegting van die vraag of 'n bekentenis
of buitegeregtelike erkenning
vrywilliglik gemaak was."
In that case it was found by
the trial court after a
trial within a trial, that the State had not proved that
a confession had been made voluntarily. Before the trial
26
within a trial however, evidence had been given
that the
appellant had pointed out certain places to a captain
in
the police. No objection had been taken to the evidence
regarding the pointing out because, at that stage counsel
was
not aware of the decision in S v Sheehama 1991(2) SA
860 (A). By the argument stage at the trial however,
counsel were aware of that decision and it was submitted
that the State had not proved that the pointing out had
been
voluntary. This submission was rejected by the
trial court but accepted by this Court. On the
facts
of
that case it seems to me, with respect, that the
conclusion of this Court was correct. The position there
was
that the pointing out occurred only nine hours after
the making of the confession which had been held to be
inadmissible. Furthermore, it was found that the
appellant was asked to point out places
"... na aanleiding van die inhoud van sy bekentenis. Dit is ewe waarskynlik
dat die beweegrede vir die afle van die bekentenis deurgewerk
het by die maak
van die aanwysings. Anders gestel, dit is nouliks denkbaar dat die
onvrywilligheid waarmee die bekentenis afgelê
is binne enkele ure in die
niet
27
vervaag het. Die samehang tussen die bekentenis en
die aanwysings, betreffende beide toepaslikheid en
tydstip was net eenvoudig te groot om met so 'n
moontlikheid
geruim te word."
In other words, it was, in my
respectful view,
unnecessary for this Court to have relied cm
anything
which the appellant said at the trial within a trial.
It
is true that in this case also a very short time
elapsed
between the making of the confession and the
preliminary
proceedings, but such proceedings are not
"buitegeregtelik". As pointed out by Nestadt JA
in
Shabalala's case supra at p 746F-G it is weight
not
admissibility that is the issue in these
circumstances.
Moreover, as I have already pointed out, the court a
quo
having ruled that the statement to Capt Van der Sandt
was
inadmissible, the trial then proceeded and the State then
recalled Sgt Dicker to testify in the trial proper. This
evidence was not given during a trial within a trial and
must
therefore have been given "on the merits". In his
evidence he testified to the fact that he was not present
28
at any time in court during the section 119
proceedings
and that he had not influenced the appellant in any way to plead guilty
or to say anything that he said at the preliminary proceedings.
It may be that
the failure of the appellant to answer this evidence distinguishes this case
from the issue which was under consideration
in Mjikwa's case. As the learned
judge who delivered the judgment in Mjikwa' s case was party to the judgment in
Sithebe's case it
seems improbable that he intended to lay down a different
principle of law. If it was intended in the passage referred to above to
depart
from what was said by this Court in the De Vries case and in Sithebe's case then
I must respectfully differ.
In any event, even if the evidence of the appellant at the trial within a
trial were to be taken into account cm the facts of this
case, I am satisfied
that the State discharged the onus of showing that what the appellant said at
the preliminary proceedings was
29
said voluntarily. The trial court found that
the
appellant's evidence given at the trial within a trial was
conflicting and unsatisfactory, that it did not accord with certain propositions
that had been put by his counsel to witnesses for the State and that aspects of
his evidence about what had happened in Capt Van
der Sandt's office when he made
the confession were untruthful without any doubt. In fact the trial court
expressly found that it
could not accept the evidence on important aspects of
his evidence. It is true that although the trial court only referred expressly
to the unreliability of certain evidence of Capt Van der Sandt, it was
necessarily implicit in the Court's finding that the appellant's
evidence that
he was arrested five days-before the 20th might reasonably be true, that the
evidence of Sgt Dicker that he arrested
the appellant on the 20th was equally
open to criticism. The trial court must however, have been fully conscious of
its own findings/with
regard to Dicker at the trial within a
30
trial and nevertheless found that the appellant
"nie
gedwing was om op die klagtes skuldig te pleit nie". There is no good
reason to differ from this finding.
It follows that in my judgment the record of the preliminary proceedings
carries its full weight as evidential material.
The court a quo found that Teyse was a good witness. As I have already
mentioned the appellant did not testify on "the merits". There
are no good
grounds for disturbing the verdict in the case of count one.
Dealing now with count four, there is no doubt that Zenzile died as a
result of the attack upon him by a number of persons on the
night alleged. The
appellant's counsel submitted that the witness Klaas was so vague and his
evidence was so contradictory and unsatisfactory
that no reliance can be placed
on his evidence save where it
31
is clearly and unequivocally confirmed by the
appellant's
own version at the preliminary proceedings. I agree with
this submission. It is accordingly necessary to determine whether the admissions
made by the appellant at the preliminary proceedings together with his plea of
guilty to the charge of murdering Zenzile establish
his guilt. The first
question that must be considered is whether the appellant was proved to have
contributed causally to the killing
of Zenzile. The effect of the evidence of
the district surgeon, Dr Du Plessis, was that Zenzile had seven wounds all of
which could
have been inflicted with a knife. One of these was a wound which
penetrated the heart. This on its own could have caused the death
of the
deceased. He also mentioned stab wounds into the lung as wounds which could also
cause death. On a reasonable reading of his
evidence the other wounds could not
have caused death on their own. It seems, for example, that the 15 mm
superficial non-penetrating
incision on the left side of the neck and the 40
mm
32
incision extending from the lip to the chin could
not
have caused death. It appears from the post mortem report that
there was an incision between ribs seven and eight on the left hand
side of the
body of Zenzile and a further incision "posteriorly between ribs 8 and 9 on the
right". There was an incision in the
lower lobe of both the right and the left
lung. The appellant said that he had stabbed Zenzile and when asked where on the
body he
had stabbed him he replied that he had stabbed him twice "op sy lyf". In
the context this means that he stabbed him on the trunk
twice and assuming in
favour of the appellant that he did not inflict the wound which penetrated the
heart it seems probable that
he inflicted at least one. of the wounds which
penetrated a lung. I shall assume however that the appellant was not shown to
have
contributed causally to the killing of Zenzile. There was no proof of any
prior agreement between the appellant and the others who
stabbed the deceased
and on that basis the State had to establish the prerequisites
33
laid down in S v Mgedezi & Others 1989(1) SA
687 at 705J - 706C. He was clearly present at the scene where' the deceased was
being
stabbed, he was aware of the assault by the others in his party and he
manifested his sharing of a common purpose with the perpetrators
of the assault
by himself stabbing the deceased. He stabbed the deceased in the trunk twice
with a knife. He accordingly had the
requisite mens rea in the sense that he
must at least have foreseen the possibility of Zenzile being killed and
nevertheless he performed
his own stabbing with recklessness as to whether or
not death ensued. It follows that the appeal also fails with regard to
count
four.
There is in my view no substance in the appeal with regard to counts six
and seven. Two eyewitnesses, Wandisile Nqakula and Mgqobele,
gave evidence with
regard to this count. Nqakula said that he saw the appellant stabbing the
deceased with a knife. Mgqobele also
puts
34
the appellant on the scene as one of the persons
who were
attacking a person who was clearly the deceased Nxati. (Mgqobele was also
the complainant on count seven.) Both these witnesses were
average witnesses and
the trial court accepted their evidence. It was put in cross-examination that
the appellant was not even in
the vicinity on the night in question but, as
already mentioned, the appellant testified only at the trial within a trial.
Some legitimate
criticisms were made of the two eyewitnesses but in my judgment
they are not sufficiently material to warrant the finding that the
learned trial
judge erred in accepting their evidence in the absence of any countervailing
evidence from the appellant.
On count 6 the appellant was sentenced to 14 years' imprisonment. It was
not submitted that the trial court had in any way misdirected
itself with regard
to sentence but it was submitted that the sentence was
35
shockingly inappropriate. It was further
submitted that
the excessive severity of this sentence was apparent
taking into account that the trial court had imposed only 9 years' imprisonment
on count one and on count four whereas it imposed 14 years' imprisonment on
count six. The trial court's reason for imposing the
heavier sentence was that
the appellant was only seventeen and a half when he committed the offences which
are the subject of counts
one and four whereas he was twenty years old when he
murdered Nxati. Greater maturity brings with it a greater ability to exercise
an
independent judgment. Furthermore, it is legitimate to take into account that
although the appellant had, at the time when he
murdered Nxati, not yet been
convicted of the other murders he had nevertheless committed them. In each of
the murders there was
a group attack upon one unarmed person which makes the
offfence particularly reprehensible. The learned trial judge gave due weight
to
the factors referred to in S v Ncaphayi en Andere 1990(1) SACR 472
36
(A) at 495a-b and the sentences taken together as
a whole
are in my view entirely appropriate. The appeal is
dismissed.
A J MILNE
Judge of Appeal
E M GROSSKOPF JA ]
] CONCUR
NICHOLAS
AJA ]