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1994
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[1994] ZASCA 78
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S v Mchunu (511/92) [1994] ZASCA 78 (27 May 1994)
78,94
Case Number 511/92
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
MFUNGELWA MCHUNU
Appellant
and
THE STATE
Respondent
CORAM
: E M GROSSKOPF, EKSTEEN, JJA et MAHOMED, AJA
HEARD
: 9 MAY
1994
DELIVERED
: 27 MAY 1994
JUDGMENT E M GROSSKOPF, JA
2
The appellant was convicted on two counts of murder in the
Natal Provincial Division. On the first count he was sentenced to 25 years'
imprisonment and on the second he was sentenced to death. He now appeals against
both convictions and sentences.
The first count related to the murder of one
Mabida. Mabida was a taxi owner who also drove some of his taxis. During the
morning
of 19 January 1991 he drove a taxi from Mooi River en route to Estcourt.
There were about 15 passengers on board. While they were
travelling one of the
passengers handed Mabida some money, saying that he and his companion wished to
get off at the Hidcote turn-off.
Mabida stopped at the turn-off. One passenger
alighted from the vehicle, and walked towards the driver's window. Shortly
thereafter
another passenger, who had remained in the taxi, started firing shots
at the driver from behind. The passenger who had alighted then
shot at the
driver from outside. The assailant inside the taxi also alighted. The two
assailants
3
ran away. When the police arrived on the scene Mabida had died
from his wounds. He had sustained, inter alia, three gunshot wounds
in his head
and neck. About 300 meters from the scene of the attack on the other side of a
hill the police found track marks which
indicated that a vehicle had either
stopped suddenly or had pulled away suddenly.
The second deceased was one
Sithole. He worked for Mooi River Textiles in Bruntville. On 6 March 1991 he was
coming from work at about
5.30 p m when he was shot down in Main Road,
Bruntville. He died almost immediately from multiple gunshot wounds.
Both deceased were members of the African National Congress.
The appellant was charged, together with three other persons, with the above
two murders and with a third of which he was ultimately
acquitted. The main
evidence linking the four accused with the offences was that of an accomplice,
Hadebe. His evidence implicated
all four accused. However,
4
the trial court was not satisfied that Hadebe's uncorroborated
evidence should be accepted beyond reasonable doubt. His was the only
evidence
linking the first three accused to these offences, and they were consequently
acquitted. In the case of the appellant, who
was the fourth accused at the
trial, there was evidence corroborating Hadebe. This was evidence that the
appellant had made an incriminating
statement to a police officer, Capt Myburgh.
After a trial within a trial the trial court held that this evidence was
admissible
and that it sufficiently corroborated Hadebe's evidence to justify a
conviction.
On appeal the main attack aginst the appellant's conviction was directed at
the admissibility of the statement. It is accordingly
necessary to summarize the
evidence in this regard.
The State led the evidence of W 0 Du Preez, Lieut-Col Nel, Det Sgt Twala, Det
Sgt Shezi and Capt Myburgh. The first four witnesses
described the events
between the arrest
5
of the appellant and the making of the statement to Capt Myburgh. According
to their evidence they went by helicopter early in the
morning of 12 November
1991 to a kraal in the Opathe area which Hadebe had identified to W O Du Preez
as being that of the appellant.
The appellant was arrested at the kraal and
taken to Estcourt prison. At the prison he was in the company of Twala and
Shezi. They
parked in the parking lot outside the prison and stood outside the
vehicles with the appellant. The purpose, according to Col Nel,
was to enable
Hadebe to look through the window from the inside to confirm that the appellant
was the correct person. After Hadebe
had provided this confirmation the
appellant was taken to the police station at Mooi River where he was interviewed
by Col Nel and
W O Du Preez, Du Preez being fluent in Zulu. The appellant then
indicated that he was prepared to make a statement to a magistrate.
Thereupon
Col Nel, through another officer, tried to obtain the services of the magistrate
at Mooi River, but he was unavailable.
Col Nel thereupon
6
telephoned Capt Myburgh of the Murder and Robbery Unit in Pietermaritzburg
who agreed to take the statement. Twala drove the appellant
to Capt Myburgh.
After giving the appellant the usual warnings and explanations, Capt Myburgh
took the statement. He testified that
the statement was read back and
interpreted to the appellant who signed each page.
The appellant gave a
different version. He confirmed that he was arrested at the kraal in the Opathe
region early in the morning of
12 November 1991. During his arrest he was, he
said, assaulted by the police. One of them hit him in his back with a rifle
butt.
He was then conveyed to Estcourt, where he was taken into the prison to
meet Hadebe. Hadebe greeted him with the words "Ja Mzanzi".
The appellant denied
that his name was Mzanzi. Hadebe paid no regard, and proceeded to tell the
appellant in detail how Mabida and
Sithole had been killed. After this the
police asked him whether he still denied his complicity in the murders. He
persisted in his
denial that he was in any way
7
involved. He was removed from the prison. Outside in the
parking area he was punched, slapped and kicked by the police. He was placed
in
handcuffs and leg-irons and taken to Mooi River. There he was interviewed in an
office by Col Nel, W O Du Preez and a number of
Black policemen. He again denied
knowledge of the offences and was again assaulted. His head was hit against the
wall while he was
handcuffed to the window. Because of these assaults he agreed
to make a statement, but said that he wanted to make one before a magistrate.
However, he was taken to Capt Myburgh, where he made the statement accepted in
evidence. He did not dispute that he had given the
answers deposed to by Capt
Myburgh and he accepted that the statement had been correctly recorded. He said
however that the statement
had been made under duress, and that he had merely
repeated what Hadebe had told him, as he had been instructed to do by the
police.
The police witnesses denied the allegations of assaults and the averment that
the appellant had been told
8
what to say to Capt Myburgh.
The main attack against the admissibility of the statement before us, as
before the trial court, was based on the fact that the appellant
had requested
to be taken before a magistrate and had been taken to a police officer instead.
This Court has often emphasized the
undesirability of having a confession taken
down by a police officer, who is ex
officio
a justice of the peace,
rather than by a magistrate. This line of cases had its origin in the judgment
of Colman J in
S v Mofokeng and Another
1968 (4) SA 852
(W) which was
approved in
S v Dhlamini and Another
1971 (1) SA 807
(A) at 815A-B. 1
need not repeat what was said in these cases and those following on them. There
are many good reasons of practice
and policy why the police should, if at all
possible, obtain the services of a magistrate for the taking down of confessions
rather
than make use of a police officer.
The failure to make use of a magistrate does not, however, have a direct
effect on the admissibility of a
9
confession. The requirements for admissibility are laid down in
sec 217(1) of the Criminal Procedure Act - the confession must be
"proved to
have been freely and voluntarily made by such person in his sound and sober
senses and without having been unduly influenced
thereto...". The failure to
obtain the services of a magistrate may, in the particular circumstances of a
case, cast light on whether
these requirements were satisfied, but is not in
itself an additional ground for ruling a confession inadmissible. See
S v
Mbatha en Andere
1987 (2) SA 272
(A) at 279A-280B;
S v Mavela
1990
(1) SACR 582
(A) at 589f-i; and
S v Mahlabane
1990 (2) SA CR 558
(A) at
562a-563a.
I turn now to consider the circumstances in which the appellant
was taken to Capt Myburgh in the light of the principles stated above.
It is
common cause that the appellant expressed a wish to be taken before a
magistrate. Indeed, the police officers made no attempt
to conceal this fact.
Thus the following passage appears in the evidence of
10
W O Du Preez:
"Adjudant, hoe het dit nou gekom dat die Beskuldigde 'n bereidwilligheid begin
openbaar het om hierdie verklaring wat hy aan u gemaak
het, te
herhaal op 'n ander plek? --- Die Beskuldigde het
nie 'n verklaring aan my gemaak by Mooirivier polisiestasie nie. Hy het slegs
erken dat hy kennis dra van die moorde en dat hy bereid
is om 'n verklaring af
te lê.
Was daar enige rede waarom u nie - of het u aan horn verduidelik hoekom dit
nodig is om dit elders te
herhaal, dit wat hy vir u sê? --- Ek het aan
hom
gevra of hy 'n verklaring wou aflê. Hy het
my toe meegedeel dat hy 'n verklaring sou afle voor 'n landdros.
Voor 'n landdros? --- Dit is korrek.
Het hy uit sy eie gesê hy wil 'n verklaring voor 'n
landdros aflê of is dit aan horn voorgestel? --- Hy
het gevra, of hy het aan my gesê hy verkies om aan 'n landdros 'n
verklaring te maak."
This was confirmed by Col Nel.
The appellant agreed that he expressed his desire to be taken before a
magistrate, but said that his intention was not to make a confession,
but to
tell the magistrate how he had been treated, and that he had no knowledge of
these crimes. On 18 December 1991 he appeared
before a magistrate
11
for a bail application. He was represented by an attorney.
When cross-examined about the statement made by him he said:
"The Police refused me the right to make a statement before a Magistrate. They
took me to Pietermaritzburg where I made a statement
before a white man wearing
a safari suit and a black man carrying a firearm."
Asked whether he had wanted to make a statement to
a
magistrate, and, if so, about what, he said:
"I was going to tell the magistrate about an incident when the Police arrived at
my home to arrest me."
The appellant was
consequently consistent in saying that he wished to be taken to a magistrate. It
is nevertheless a matter for comment
that, when finally appearing before a
magistrate in the bail application, he made no mention of the alleged assaults
on him, nor
did he contend that the statement made by him was merely a
repetition of what others had told him to say.
The next question then is why the appellant was not taken before a
magistrate. The attempt by Col Nel to find a
12
willing magistrate seems to have been rather perfunctory.
When the
magistrate at Mooi River proved to be unavailable
the search was stopped, and a police officer from
Pietermaritzburg was approached. By the same token a
magistrate from one
of the surrounding towns might have been
willing to take the confession. Col
Nel said that magistrates
were often unable to assist and, it may be
inferred, he found
it easier to approach a police officer.
The position then is that the appellant wished to
go before a magistrate and the efforts by the police to
obtain the services of a magistrate were rather faint. How do
these circumstances impact on the question whether the
confession was freely and voluntarily made? The trial court
dealt with this matter as follows:
"Certainly it is more desirable for statements to be taken by magistrates,
but the Act allows statements to be made before police
officers and if the Court
is satisfied that the police officer has given the Accused the necessary
warnings and satisfied himself
that there had been no assaults or undue
influence upon him, then such statements must be accepted as being admissible in
evidence.
We were impressed by Captain Myburgh as an honest.
13
careful and responsible officer. He went to some length to ensure that the
accused had not been assaulted. He recorded that he asked
the accused to undress
down to his underpants and he recorded that there were no signs of bruises or
any other fresh injuries. Indeed,
he is supported by this in that the Accused
was examined by a district surgeon on the very next day, Dr. Bayat, and the only
injury
which he found was some tenderness to the lumbar spine. He in fact
recorded that there was no bruising or any other injuries which
he found on the
Accused. All the police officers, in our view, were good witnesses who gave
their evidence in a straight forward
manner and were unshaken in
cross-examination. We reject the evidence of the Accused of the alleged assault
upon him, for a number
of reasons. The principal reason and this was also
conceded fairly by Mr. De Wet, was the virtual impossibility for the Accused to
have heard and retained in his memory the facts set out in the three typed pages
of the statement as coming from Hadebe. The Accused
was obviously lying in this
regard. There were names and facts set out in this statement which he could not
possibly have recalled
and then given to Captain Myburgh some two hours after he
had heard them. There is also his reply to question 11.1 which is: 'As
you are
still prepared to make a statement, I would like to know the source of
information regarding the proposed statement you wish
to make'. To which the
answer was: 'Because I was there when this thing happened'. We also believe that
he was not telling the truth
when he said he saw Hadebe in the Estcourt prison.
If it was so that he in fact saw Hadebe in prison then there seems no reason why
the police would deny that and say that he was only standing in the parking lot.
Colonel Nel gave a
14
very good reason why he wasn't taken in and was just allowed to stand outside so
that he could be identified. It also seems to us
to be highly improbable that if
the police were intent upon forcing the Accused to make a statement by
assaulting him they would
take him out into the open parking lot and assaulted
him, and not assault him in private where they would not be seen by anybody.
The evidence of the accused that he had lacerations on his ankles and his wrists
from being roughly handled while he was handcuffed
and in leg-irons was also not
borne out by the report of Dr. Bayat. Furthermore, the proceedings at the bail
application reveal that
he, at that stage, although referring to the statement
he made to Captian Myburgh, made no complaint about having been assaulted.
For
these reasons I ruled that the statement was admissible."
I do not agree with the proposition stated in
the
first sentence of this extract. It is not the
officer taking
the statement who must, in the final analysis, be
satisfied
that the statement was made freely and voluntarily and
without
undue influence, but the trial court, and, on appeal,
this court. This comment is, however, by the way. I agree
with the trial
court that the crucial issue in the present
case is one of credibility. If the police evidence is
15
accepted beyond a reasonable doubt there could be no reason to reject the
confession. The fact that the appellant initially expressed
a preference to
appear before a magistrate could then not be conclusive, since on the police
version proper measures were taken to
ensure that, despite the appellant's
earlier preference, any statement to Capt Myburgh would be made freely and
voluntarily. And
on that version there was nothing sinister in the rather
ineffectual attempts to obtain the services of a magistrate. On this point,
it
should further be borne in mind that Capt Myburgh was not involved in the
investigation of the charges against the appellant and
no reasons were adduced
to cast doubt on his integrity.
In view of what I have said, this appeal can only succeed if the appellant
could persuade us that the trial court's credibility findings
were incorrect.
The appellant's counsel made no attempt to do so, and in my view these findings
are unassailable. The features relied
upon by the
16
appellant, viz the appellant's expressed wish to be taken to
a magistrate,
the fact that he was taken to Capt Myburgh
instead, and the friendly relations between Capt Myburgh and
Col Nel, were
known to the trial court when the credibility
findings were made, and do not suffice to show that these
findings should be rejected.
It follows that the appellant has not shown that
the confession to Capt Myburgh was wrongly admitted. It reads
as follows:
"I cannot remember the dates regarding this thing I was involved in. I will
explain how it happened.
During January 1991, a black male by the name of Maytapele Khanyile came to my
kraal at Opothe near Tugela Ferry. I was not present
when he
arrived.
After Maytapele visited my kraal, he left
again. I did not speak to him. I was then called by a person Mbuyiselwa Sithole
who asked
me to come to his kraal. I was together with Mdudusi Mchunu when
Sithole called me.
Mbuyiselwa told me and Mdudusi that Maytapele was looking for persons to go
and fight the violence against the 'A.N.C.' at Mooi River,
and that he Maytapele
was send (sic) by the Inkatha people at Mooi River. I told Mbuyiselwa that I was
scared because I does (sic)
not want to die.
17
I was then told by Mbuyiselwa that these people will pay me well and I
decided to go. Mdudusi also agreed to go and we fetched a third
person from his
kraal. We asked Zwelamandla Ndlovu to go with us, he agreed. He also needed
money as we were not working.
We discussed what we were going to fight with, Maytapela told us not to worry
as there was a lot of firearms at Mooi River. The same
day we left to Mooi
River, we went with Maytapela's car.
At Mooi River Maytapela introduced us to a person called Nyasi Mchunu. This
man was in charge of Inkatha at Mooi River. We asked Nyasi
how much he was going
to pay us. Nyasi said that we must say how much we want.
Myself, Swelamandla and Ndudusi said to Nyasi that we want ten thousand
(R10,000.00) rand each. Nyasi said that it was too much. At
the end we decided
to take one thousand rand (R1,000.00) each and Nyasi paid us.
Nyasi took us to his office next to the hostel and he gave each of us a
firearm. Nyasi said that we must go and shoot a person who
was an 'A.N.C.'
member, he said that he will go and show us where this person was.
We left with the car of Mayatapela and Nyasi took us to a Taxi rank at Mooi
River. Nyasi pointed out this person who was to be shot.
This man was a taxi
driver.
Mdudusi and Zwelamandla got into this man's taxi.
18
I remained in Mayatapela's car as I had shot myself in my toe in Nyasi's
office. (Deponent indicates towards his left foot). Mdudusi
and Zwelamandla left
with the taxi. Myself and Nyasi left to the spot where we had to meet them after
they have killed the taxi driver.
The car was driven by Mayatapela.
We waited at the spot. Mdudusi and Zwelamandla came running towards us. They
got into the vehicle telling us that that they have killed
the taxi driver. We
left to Nyasi's house where we stayed for a couple of days.
Nyasi came to us again and said that there was another person who must be
killed. He said that this person was working at a certain
factory at Mooi
River.
We were told by Nyasi that another person was going to point out the person
to us that was going to be killed. He brought a person
to us who was not known
to us.
On a certain day unknown to me, Nyasi came to us with this unknown
person.
We left Nyasi at the hostel. Myself, Mdudusi, Zwelamandla and Nyasi's friend
walked on foot.
Myself and Mdudusi walked in front being followed by Zwelamandla and Nyasi's
friend. Whilst walking we heard a shot from behind. I
turned around and saw
Nyasi's friend firing some more shots at an unknown person. This person was
staggering around and he later
on fell down on the ground.
19
I walked to Nyasi's friend who told me that this was the person who was to be
killed. I took the firearm from Nyasi's friend and
also fired two shots at the
man lying on the ground. Mdudusi also fired some shots at this man on the
ground.
We ran back to the hostel and told Nyasi that we have killed the man.
After a while a police vehicle arrived and Nyasi went to this vehicle. Nyasi
spoke to the policemen and came back to us. He told
us not to worry as the
policemen were his friends, he further said the we must not worry as the Station
Commander at Mooi River knows
what Nyasi was doing.
We then quarrelled with Nyasi because we felt that he did not paid (sic) us
enough and we went back to our kraals at
Opothe."
It was not disputed that this
confession relates to
the two murders charged in this case. Indeed, the evidence of
Hadebe and
the objective evidence as to the two killings make
this abundantly clear. It
was, however, contended that the
statement does not show that the appellant
had a common
purpose with the murderers of Mabida (the deceased in
the
first count). I do not agree. According to the statement the
appellant
was one of the group of hired killers and had been
20
paid and armed for the murder. Because he had been hurt, his
role was to assist with the escape of the others. In my view this constitutes
sufficient participation in the murder to justify his conviction.
In the
result none of the arguments raised in respect of the appellant's convictions
can be sustained. In my view the appellant was
correctly convicted on the
evidence and the appeal against the two convictions must be dismissed.
I turn now to the appeal against sentence. On the first count the appellant
was sentenced to 25 years' imprisonment. It is trite law
that sentencing is
normally a matter falling within the discretion of the trial court and that an
appeal against a sentence can only
succeed if the discretion was not properly
exercised. This general rule applies to the sentence now under consideration. In
argument
the appellant's counsel could not point to any irregularity or
misdirection in the court's reasoning. His only contention
21
was that the sentence was so severe that it justified the
inference that the trial judge did not exercise a proper discretion. 1 do
not
agree. A killing for gain is always a very serious matter. In the present case
the appellant's role was, fortuitously, a lesser
one, but that does not detract
substantially from the gravity of his offence. Even when regard is had to the
mitigating factors,
which I consider more fully when I deal with the appeal
against the death sentence on the second count, the sentence of 25 years'
imprisonment was not so severe, in my view, as to justify interference.
That brings me to the death sentence imposed on the second count. In an
appeal against a death sentence this court has a discretion
to decide afresh
whether the sentence is, in its view, the proper sentence. This also is
trite.
The aggravating factors in this case are obvious. I have already mentioned
the seriousness of killings for gain. The murder was premeditated,
planned and
executed in cold
22
blood for money.
As against that there are some mitigating
factors. The appellant is 30 years old and has no previous convictions. A clean
record is
usually an important mitigating factor, indicating that the person
involved has no propensity to crime and can be expected to be
rehabilitable. And
there are suggestions on the record that there were special circumstances on the
facts of this case which to some
extent mitigate the seriousness of the
appellant's conduct. Thus it appears from his confession that he was unemployed.
He was a
married man with a family to support. He was probably in dire need of
money. He did not take the initiative but was persuaded to
go along with this
band of killers. And one must have regard to the social circumstances at the
time. It is common knowledge that
Natal was racked by violence. In such
circumstances otherwise law-abiding people can be drawn into the general
lawlessness which
they would eschew in normal times. Having regard to these
various
23
factors, I consider that there are enough mitigating factors
in the present case to indicate that a long period of imprisonment would
be
sufficient for purposes of retribution and deterrence, while still providing for
the possibility of the appellant's rehabilitation.
In the result the following order is made:
(a) The appeal against the convictions on both counts and the sentence on count
1 is dismissed;
(b) The appeal against the death sentence on count 2 is upheld. The sentence is
set aside and replaced by a sentence of thirty (30)
years' imprisonment.
(c) The sentences on the two counts are to run
concurrently.
E M GROSSKOPF, JA
EKSTEEN, JA ) MAHOMED, AJA) Concur