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1994
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[1994] ZASCA 20
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S v Shezi (244/93) [1994] ZASCA 20 (22 March 1994)
244/93 /mb
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
NELSON SHEZI
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: KUMLEBEN, VAN DEN HEEVER JJA, VAN COLLER AJA
HEARD
: 10 MARCH 1994
DELIVERED
: 22 MARCH 1994
JUDGMENT
KUMLEBEN JA
/....
2
The appellant was convicted in the Durban and Coast Local
Division of the Supreme Court on three counts of murder and sentenced, taking
these convictions as one, to twelve years imprisonment. With leave of the trial
court, the correctness of the conviction is before
us on appeal.
On the evening of 28 October 1990 the deceased, all young men, were running a
tuck shop from a stationary van in the Kwa Mashu Township,
They lived in an
adjoining shack. At about 20h00 they were attacked by a band of six armed men
wearing khaki uniforms. Some of them
had firearms. Shots were fired and all
three deceased died as a result of bullet wounds. This in brief was the evidence
of the eyewitness
Mr Bongani Mabaso.
After he had testified, counsel for the respondent intimated that the State
would
inter alia
rely on a confession made by the appellant, and
3
recorded by a magistrate, to prove that he was a participant in the attack.
Mr Luthuli, representing the appellant, contested its
admissibility on the
ground that the statement had not been voluntarily made. This led to an
interposed enquiry (a so-called "trial-within-a-trial")
at the conclusion of
which the statement was ruled admissible. A "pointing out" exercise was also the
subject of this enquiry but
there is no need to refer to it in this judgment. In
the course of the enquiry a State witness, Detective Sergeant Sibisi, said that
after the arrest of the appellant he interviewed him. The appellant was given
the customary warning, told that he was not obliged
to say anything and the
charges were read out and explained to him. He responded by making a statement
and, when asked by Sibisi,
said that he was prepared to repeat it before a
magistrate. It reads as follows:
4
"On Sunday 28 October 1990 myself, Hlela, Khoza and another Khoza left home for
an Inkatha meeting at a place called Kwa Best. On
our way to the meeting we
called at Mbuso Ndlovu's place. When we arrived at Mbuso's place Hlela borrowed
a firearm AK 47 from Mbuso
Ndlovu. Thereafter we went to the meeting. We
returned from the meeting. We went home. Whilst we were in the house at Kwa
Mashu Mens
hostel David Magwaza came. He spoke to Hlela. David Magwaza said we
should go to the shack. Myself, Nhlanhla Shandu, Dumisani Mdletshe
and David
Magwaza went to the shack. When we arrived at this dwelling shack David Magwaza
had an AK 47 rifle. Nhlanhla carried a
knife. Mdletshe carried a stick. I
carried a home made firearm. David fired a shot inside the shack. There were
people inside. I
also fired a shot. The people who were in the shack were
members of the Comrades. David shot two people with the AK 47 rifle. One
person
was injured. I fired at a person with the home made firearm but did not hit this
person. When David fired the bullet struck
my left ankle."
After
this confession had been received in evidence
the State closed its case. The defence did likewise
without adducing any
evidence. Any involvement of
the appellant in the perpetration of these offences
was thus based upon his confession: no other
5 evidence implicated
him.
In the course of his address to the court on the merits before verdict,
Mr Luthuli submitted that the confession, viewed in isolation,
did not
necessarily refer to the incident, the subject of the indictment, and that for
this reason the case against the appellant
had not been proved. Assuming this
submission to be well-founded, the evidence of Sibisi at the enquiry, to which I
have referred,
if restated in the trial proper would have plainly cured any such
lacuna. The court, mindful of the fact that the enquiry was a separate
one
solely concerned with the admissibility of the confession, considered it
necessary or at least prudent to have such evidence
on record in the trial
itself: if not by way of an admission on the part of the defence, then by
recalling the witness to repeat
what he had already said. The proposal was put
to defence counsel but no
6 admission was forthcoming. The court thereupon,
in the exercise of its discretion in terms of
s 167
of the
Criminal Procedure
Act 51 of 1977
, recalled Sibisi. He furnished the necessary evidence. The
cross-examination , if anything, confirmed what he had now twice stated.
The
convictions followed, based on the confession and an application of the doctrine
of common purpose.
Mr Luthuli submitted on appeal that the court improperly exercised its
discretion in recalling Sibisi at such a late stage in the
proceedings and that
the appellant was prejudiced thereby. Fundamental to this question, counsel
conceded, is whether such evidence
was at all necessary to sustain the State
case.
As a matter of course on arrest the appellant would have been informed of the
reason therefor. Thus knowledge of the nature of the
charge
7 would have
preceded and related to his decision to confess. It is fanciful to suggest that
he might have confessed to a crime without
knowledge of the reason for his
arrest. It is even more far-fetched to conclude that having being arrested for
and told of crime
A, he would have confessed to crime B. Furthermore, a
comparison of the State evidence with the contents of the confession reveals
significant points of coincidence. Ballistic evidence proved that an AK 47
automatic rifle was used in the attack and that some of
the shots could have
been discharged from a home made firearm. The locality of the confessed criminal
conduct corresponds with the
evidence of Mabaso in this regard. In the
appellant's statement in terms of
s 115
of the Act he admitted that on 28
October, the day on which these offences were committed, he was at the Men's
Hostel in Kwa Mashu,
which was clearly a reference to the
8 men's hostel
referred to in the summary of substantial facts. The appellant further admitted,
in terms of
s 220
of the Act, that the AK 47 automatic rifle was found in the
possession of one Hiela and that it was used in the commission of the
crimes
charged. In the confession the appellant states that he was
inter alios
with Hlela, who was in possession of such a weapon on the day in question. Thus,
although the court acted with prudence in recalling
Sibisi - and one might with
hindsight say overcautiously - there was in fact no need to do so.
I must, however, add that I have no doubt that, had it been necessary for
direct evidence of such nature to be on record, the decision
to recall Sibisi in
the circumstances could not be faulted.
Section 167
of the Act confers a wide
discretion on the court to recall a witness "at any stage in the criminal
proceedings". The evidence in
question
9 given by Sibisi at the enquiry was
inherently formal, concise and, as one would have expected, uncontroversial.
In granting leave to appeal, the trial judge (Hurt J) concluded by
saying:
"Ms
Ebrahim
[counsel for the State at the trial] has very properly
conceded that the whole question of encapsulation of evidence in cases where
the
admission of a confession is involved, is one which gives rise to difficulty and
since that is an aspect which pertains to this
particular case, I feel that the
applicant should be granted leave to appeal to the Appellate
Division."
Any problem relating to the "encapsulation of
evidence" - as I see the matter - would only arise if the two issues discussed
above
had been decided in favour of the appellant (ie: that it was necessary to
rely on that evidence of Sibisi for the conviction and
that the court was wrong
in recalling him)
and
if the respondent then chose to contend that
this
10
evidence of Sibisi given at the enquiry could in any event be taken into
account to secure a conviction. The problem is thus a hypothetical
one but in
the light of what was said in granting leave to appeal it is perhaps appropriate
to comment briefly in this regard.
An accused person has the right to have the question of the admissibility of
a confession tried as a separate and distinct issue.
Hence the fact that the
evidence at the enquiry cannot be relied upon in reference to the ultimate
verdict. This has been stressed
in at least two decisions of this court:
S v
De Vries
1989(1) SA 228(A) 233 and
5 v Sithebe
1992(1) S.A.C.R. 347.
Both were concerned with evidence adduced at the inquiry and whether such can be
taken into account in the
trial proper. In the former decision at 233H Nicholas
AJA said:
"It is accordingly essential that the issue of
11
voluntariness should be kept clearly distinct from the issue of guilt. This is
achieved by insulating the inquiry into voluntariness
in a compartment separate
from the main trial."
This was confirmed (per Nienaber JA) in the
latter decision in these terms at 351a - b:
"The principle which it [the De Vries case] exemplifies is that an accused must
be at liberty to challenge the admissibility of an
incriminating document at a
trial within the trial without fear of inhibiting his election at the end of the
day - irrespective of
whether the document is admitted or not - of not
testifying on the issue of his alleged guilt. Unless the trial within the trial
is treated as a watertight compartment, with no spill-over into the main trial,
that danger will always exist: for if an accused
person's evidence in the trial
within the trial can legitimately be held against him in the main trial, he
might be obliged to testify
again in order to regain lost ground; and if the
evidence of a State witness, where the merits are at stake, can simply be
transplanted
into the main trial, the accused might be obliged not only to
cross-examine fully on all such issues (lest he lose the opportunity
of doing so
later) but to testify himself in order to neutralise its effect. In principle,
unless the parties stipulate to that effect,
neither the evidence of the accused
nor of State witnesses given during the trial within
the
12
trial, ought therefore to be injected into the main trial."
Thus
the inquiry and the trial are to be separate in substance as well as form and
the former is to be restricted to evidence relating
to the admissibility of the
confession.
In the result the appeal is dismissed.
M E KUMLEBEN
JUDGE OF APPEAL
VAN DEN HEEVER JA
Concur VAN COLLER AJA