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S v Smile and Another (16/96) [1998] ZASCA 30; 1998 (5) BCLR 519 (SCA) ; [1998] 2 All SA 613 (A) (27 March 1998)

80 Reportability
Criminal Procedure
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Brief Summary

Criminal Procedure — Right to a fair trial — Appellants convicted of murder and robbery — Allegation of denial of fair trial due to State's failure to provide summaries of witness statements before trial — Appellants contended that this constituted a violation of their constitutional rights under the interim Constitution — Court held that while the initial refusal constituted a constitutional irregularity, the subsequent provision of statements before the closure of the State case mitigated the impact — Convictions upheld as the irregularity did not taint the verdict.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were criminal appeals to the Supreme Court of Appeal against convictions and sentences imposed by the Eastern Cape Division of the Supreme Court. The appellants, Mfaswe John Smile (first appellant) and Mondile Solomon Ysterman (second appellant), had been tried on two counts of murder and one count of robbery, arising from events on 4 April 1993 in Bedford.


Despite pleas of not guilty, both appellants were convicted on all three counts. They were sentenced to death on each murder count and to twelve years’ imprisonment for robbery. They appealed against their convictions and sentences on the murder counts, and (with leave of the trial court) against the robbery convictions.


The general subject-matter of the dispute concerned, first, a constitutional/fair trial complaint relating to the timing of disclosure of prosecution witness statements, and secondly, on the merits, whether the evidence established beyond reasonable doubt that the first appellant (in particular) participated in the murders and robbery, given that much of the case against him was circumstantial.


2. Material Facts


Two elderly victims, Mr and Mrs Taljaard, were found dead at their home at 3 Graham Street, Bedford at about 20h30 on Sunday 4 April 1993. Mr Taljaard’s body was found in an outside room adjoining the garage, and Mrs Taljaard’s body in her bedroom. It was undisputed that both had been killed by strangulation, and that robbery had occurred. Mr Taljaard had also sustained a skull fracture from a blow to the right side of his head, and Mrs Taljaard had suffered blunt force injuries to her head and face. Various items belonging to the deceased were missing.


The central factual dispute at trial was the identity of the assailants. On appeal, counsel for the first appellant conceded that the second appellant’s guilt had been established, but contended that the evidence did not prove the first appellant’s guilt beyond reasonable doubt.


In relation to the second appellant, the court accepted evidence that he had made two confessions admitting participation in the murders and robbery, one to an awaiting-trial prisoner, Mlungisi Sydney Mali, on 27 April 1993, and another to Francois Nicholaas Vorster, a magistrate, two days later. In addition, the second appellant was implicated by the evidence of Mabuti Smile, the fifteen-year-old son of the first appellant. Mabuti testified that, shortly after the offences, the second appellant caused a suitcase (concealed under plastic sheeting on the roof of the second appellant’s shack) to be burnt, and Mabuti ensured it was completely destroyed. This suitcase matched the description of one missing from the Taljaards’ house. Mabuti further testified that he saw a gold pen in the second appellant’s room, later identified as Mr Taljaard’s property and inscribed with his name. Mabuti also discovered a peanut butter jar in a fowl run containing jewellery and a watch; evidence identified these as belonging to Mrs and Mr Taljaard respectively, and Mabuti testified that the second appellant had told him the jar was there and belonged to him. Caroline Dweza confirmed seeing Mabuti overseeing the burning of the suitcase. The second appellant’s denial was rejected.


In relation to the first appellant, the court relied materially on evidence about his connection to the deceased and the presence of stolen goods in premises under his control. Evidence accepted by the trial court was that the first appellant had worked in the Taljaards’ garden, particularly on Saturdays, and therefore would have had familiarity with their property. It was also accepted that on the morning of Sunday 4 April 1993, both appellants were together at the home of Mrs Topsi Lubisi, who testified that the first appellant visited to say he was not feeling well and would delay repairing a cupboard for her. The trial court accepted that this visit occurred the day before the appellants were first arrested on 5 April.


The most significant factual foundation for the first appellant’s conviction was a police search on 29 April, conducted in the presence of the first appellant, of a shack used by him as a small shop and sleeping place. The police found concealed above the ceiling items of jewellery (including an engagement ring) identified as Mrs Taljaard’s, and items of clothing identified as Mr Taljaard’s. Hidden behind a panel near the door were two pens belonging to Mr Taljaard (including the inscribed gold pen), and among tools on the floor was a knife identified as a knife usually kept in the Taljaards’ kitchen. When asked for an explanation, the first appellant said he did not know how the goods had come to be there. One police witness testified that the first appellant attempted to flee when goods were found in the ceiling, and was prevented from doing so.


During the same operation, police also found Taljaard property buried in a dog enclosure on the property. However, the appeal court treated the dog enclosure discovery as not necessarily implicating the first appellant because others, including the second appellant (who rented a separate shack on the same property), had access to the enclosure, and there was no admissible evidence establishing the first appellant’s knowledge of the buried property.


The first appellant did not testify. The court treated as significant that, through cross-examination, the defence had put versions to certain witnesses denying that the first appellant had worked for the Taljaards and denying that the appellants had been at Mrs Lubisi’s house on the relevant morning, yet those denials were not supported by the first appellant’s own evidence.


3. Legal Issues


The appeal raised two principal clusters of legal questions.


The first was a fair trial / constitutional question: whether the State’s initial refusal (at the commencement of trial) to provide the defence with summaries or access to prosecution witness statements, and the subsequent disclosure only once the State case was under way, rendered the trial unfair in a manner requiring the convictions to be set aside. This involved a question of application of constitutional fair-trial principles to the facts, including whether any irregularity was remediable and whether it tainted the convictions.


Embedded within this preliminary point was a jurisdictional contention: whether, in light of s 17 of Schedule 6 to the 1996 Constitution, the issue of fair trial under the interim Constitution could be decided by the Supreme Court of Appeal or had to be referred to the Constitutional Court. This was principally a question of law, informed by precedent on appellate jurisdiction.


The second cluster concerned the merits: whether, on the circumstantial evidence (notably possession and concealment of recently stolen property, links between the appellants, and false denials put on the first appellant’s behalf), the only reasonable inference was that the first appellant participated in the murders and robbery, rather than being guilty only of theft or receiving stolen property. This was a classic question of application of law to fact, requiring evaluation of competing inferences from circumstantial evidence and the use of permissible evidentiary reasoning.


4. Court’s Reasoning


On the preliminary constitutional point, the court proceeded from the Constitutional Court’s holding that blanket docket privilege could not justify withholding witness statements, and accepted (consistent with the parties’ approach) that the principles in Shabalala and Others v Attorney-General of Transvaal and Another governed the entitlement to disclosure. The respondent’s counsel conceded that the defence should have had access to the statements before trial commenced.


The court nevertheless emphasised that not every constitutional irregularity automatically results in a conviction being set aside. It referred to the approach articulated by Mahomed CJ in S v Shikunga and Another, namely that the operative question is whether the irregularity was so fundamental as to amount to “no trial at all”, or whether, in a less severe case, it tainted the verdict. The appellate evaluation therefore required consideration of the trial as a whole, including whether any initial unfairness was later cured and whether actual prejudice was shown.


The court rejected the contention that it lacked competence to decide the fairness question. It relied on S v Khan, where the Supreme Court of Appeal held that, notwithstanding jurisdictional constraints under the interim constitutional scheme, it was both free and required in the exercise of its appellate function to decide whether the trial had been fair. The court treated this as controlling and saw no basis to regard it as clearly wrong; accordingly, it held that the matter did not require referral to the Constitutional Court.


Applying the fairness principles to the facts, the court accepted that witness statements for witnesses who had not yet testified were disclosed in August 1994, before the State had closed its case, and that statements of witnesses who had already testified were made available on request, with no defence requests refused. The court also considered that the trial court would likely have permitted the recall of any witnesses if requested, but no such application was made. On this basis, the court characterised the initial non-disclosure as an irregularity that was potentially remediable, and found that the later disclosure, combined with the procedural opportunities still available to the defence, meant that any initial unfairness had been purged and did not persist so as to taint the convictions. The court nonetheless stressed that this conclusion did not endorse routine delayed disclosure, and indicated that disclosure should usually occur when the indictment is furnished or soon thereafter, as suggested in Shabalala.


Turning to the merits, the court first noted an evidentiary principle concerning co-accused confessions: an accused cannot be convicted merely on the basis of association with a co-accused whose guilt is shown only by a confession; there must be evidence admissible against the accused proving the co-accused’s guilt independently. Although the trial court appeared to have overlooked this point, the Supreme Court of Appeal considered that there was sufficient evidence, aside from the second appellant’s confessions, supporting the second appellant’s guilt, particularly through Mabuti’s evidence and the corroboration regarding stolen property and the burnt suitcase.


In assessing the first appellant’s guilt, the court treated the discovery of stolen goods buried in the dog enclosure as not probative against the first appellant because of shared access and the absence of evidence establishing his knowledge or involvement. The critical evidentiary weight lay instead in the discovery of stolen goods in the first appellant’s shack, where jewellery, clothing, pens, and the knife were concealed in multiple places. The court considered and discounted the defence suggestion that property could have been placed above the ceiling from outside the structure, finding that this did not plausibly account for items concealed behind an internal panel and among tools on the floor.


The court also addressed the possibility that someone else could have accessed the shack while the first appellant was detained between 5 and 29 April. While it accepted that the first appellant’s son had obtained the key on one or two occasions, the evidence indicated that the shack remained locked and there was no apparent reason for someone other than the first appellant to store Taljaard property in his room. The first appellant’s failure to testify, though not creating an onus, was treated as significant in the context of the unexplained presence of the stolen property.


The court then applied the established principle that possession of recently stolen property can justify an inference that the possessor stole it, and in appropriate circumstances may support further inferences about associated offences, depending on whether the totality of proved facts supports only one reasonable inference. It considered that the first appellant had worked for the Taljaards and would have had knowledge of their home and habits; that he was linked to the second appellant, who arrived in Bedford shortly before the murders, did not know the Taljaards, rented a shack from the first appellant, and was with the first appellant on the morning after the killings; and that the gold pen seen in the second appellant’s room was later found in the first appellant’s shack. The court further took into account that denials had been put to key witnesses on the first appellant’s behalf (denying his work for the Taljaards and his presence at Mrs Lubisi’s home) without the first appellant testifying to support those denials.


From the totality of these facts, the court concluded that the only reasonable inference was that the first appellant stole the goods from the Taljaards’ house. Given the court’s acceptance that the property could only have been removed from the house at the time of the murders, it followed, in the court’s reasoning, that the first appellant must have participated in the murders and robbery and acted in concert with the second appellant. The court therefore rejected the contention that the first appellant’s conduct could reasonably be reduced to mere theft or receipt of stolen property, and also rejected the suggestion that the trial court convicted on the basis of an assumption (rather than proved fact) that two perpetrators were involved.


5. Outcome and Relief


The appeals by both appellants against their convictions on all three counts were dismissed. The convictions for the two murders and the robbery therefore stood.


Because the death sentence was no longer competent, the Supreme Court of Appeal set aside the sentences of death imposed on counts 1 and 2 and remitted the matter to the trial court to impose fresh sentences on those counts. The sentence of twelve years’ imprisonment on the robbery count was not set aside by the order described.


No separate costs order was made in the criminal appeal.


Cases Cited


Phato v Attorney-General, Eastern Cape, and Another; Commissioner of the South African Police Services v Attorney-General Eastern Cape and Others 1995 (1) SA 799 (E)


Shabalala and Others v Attorney-General of Transvaal and Another [1995] ZACC 12; 1996 (1) SA 725 (CC)


S v Shikunga and Another 1997 (2) SACR 470 (NmSC)


S v Khan 1997 (2) SACR 611 (SCA)


Nortje and Another v Attorney-General, Cape, and Another 1995 (2) SA 460 (C)


R v Baartman and Others 1960 (3) SA 535 (A)


S v Nkomo and Another 1966 (1) SA 831 (A)


S v Parrow 1973 (1) SA 603 (A)


Legislation Cited


Constitution of the Republic of South Africa Act 200 of 1993, section 25(3), sections 98(2)(a), 98(3), 101(5), and 102(6)


Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), Schedule 6, section 17


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The Supreme Court of Appeal held that it was competent, in the exercise of its appellate function, to determine whether the trial had been fair, and that the fairness issue did not require referral to the Constitutional Court. Although the State’s initial refusal to provide access to witness statements constituted a constitutional irregularity, the subsequent disclosure while the State case was still open, combined with the availability of procedural remedies (including the ability to request statements and seek recall of witnesses), meant that the irregularity did not persist so as to taint the convictions.


On the merits, the court held that the second appellant’s guilt was established and that, considering the totality of circumstantial evidence—especially the concealment of stolen Taljaard property in the first appellant’s shack, his relationship with the second appellant, and the absence of an explanation—the only reasonable inference was that the first appellant participated in the robbery and murders in concert with the second appellant. The convictions were accordingly confirmed, but the death sentences were set aside and the matter remitted for re-sentencing on the murder counts.


LEGAL PRINCIPLES


A refusal to provide an accused with access to prosecution witness statements may constitute a constitutional irregularity, but the appropriate appellate inquiry is whether the irregularity is fundamental (amounting to no trial) or whether it tainted the verdict. The fairness of criminal proceedings must be evaluated with regard to the particular circumstances of each case, including whether the irregularity was remediable and whether later events cured any initial unfairness.


The Supreme Court of Appeal may, notwithstanding the interim constitutional framework, determine in its appellate capacity whether a trial was fair, and is not necessarily required to refer such an issue to the Constitutional Court where the governing parameters are established and the question is the application of those parameters to the facts.


An accused cannot be convicted solely on the basis of association with a co-accused whose guilt is established only through a confession; if the association is relied upon, there must be admissible evidence proving the co-accused’s guilt independently of the confession.


Possession of recently stolen property can support an inference that the possessor stole it, and in appropriate circumstances can support further inferences about associated serious offences, provided that, on the totality of proved facts, the inference drawn is the only reasonable inference consistent with the evidence.

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[1998] ZASCA 30
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S v Smile and Another (16/96) [1998] ZASCA 30; 1998 (5) BCLR 519 (SCA) ; [1998] 2 All SA 613 (A) (27 March 1998)

REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO: 16/96
In the matter between:
MFASWE JOHN SMILE
1
st
Appellant
MONDILE SOLOMON YSTERMAN
2
nd
Appellant
and
THE STATE
Respondent
Coram
: Smalberger, Marais, JJ A et Melunsky, A J A
Heard
: 12 March 1998
Delivered
: 27 March 1998
JUDGMENT
2
MELUNSKY,AJA
:
The two appellants are adult males. They stood trial in the
Eastern Cape Division of the Supreme Court on two counts of murder (counts 1 and 2)
and one of robbery. The offences were alleged to have been committed on 4 April 1993
at
3 Graham Street
,
Bedford
. Despite their pleas of not guilty the appellants were convicted on all counts. They were sentenced to death on each of the murder
counts
and to twelve years' imprisonment on the third count. They appeal to this court against
their convictions and sentences on counts 1 and 2 and, with the leave of the court a quo,
against their convictions on count 3.
Before dealing with the facts of the appeal, it is necessary to refer to a preliminary
issue raised by Mr Notshe, who appeared for the appellants in this court and in the court
a quo. The trial commenced on 7 June 1994 but before evidence was led Mr Notshe
applied for a postponement of the hearing to enable him to bring an application to the full
court or another judge for an order to compel the State to hand over to the defence
separate summaries of the evidence to be given by each of the witnesses whom the State
3
proposed to call. The application was opposed by the State (represented both in this
court and in the court a quo by Mr Bezuidenhout) and was dismissed. Thereupon Mr
Notshe requested the learned trial judge to order the State to furnish the defence with
separate summaries of the evidence to be given by each prosecution witness. After
opposition by the State this application, too, was dismissed.
The trial then proceeded and, for reasons which are not relevant to this appeal,
was adjourned on 24 August and resumed on 6 December by which stage the State case
had not been closed. During 22 to 29 July the full court of the Eastern Cape Division
heard applications relating to the right of an accused person to be given access to
witnesses' statements before prosecution (see Phato v Attorney-General, Eastern Cape,
and Another;Commissioner of the South African Police Services v Attorney-General Eastern
Cape and Others
1995 (1) SA 799
(E)). The court supplied reasons for
judgment on 27 October but it made an order on 29 July in terms of which, inter alia,
the Attorney-General was ordered to furnish one of the applicants, who was an accused
person, with statements of witnesses and other documents contained in the police docket.
4
During August 1994 and after the terms of the aforesaid order became known
to counsel for the State in the trial in the court a quo, statements of the State witnesses
who had not yet testified were delivered to the appellants' counsel and statements of the
witnesses who had already testified were made available to the defence.
In this court Mr Notshe argued that the appellants had been deprived of the right
to a fair trial on the ground that the State had refused to furnish them with summaries of
statements of witnesses
before
the hearing. He submitted that the subsequent change
of stance by counsel for the State, while the State case was already under way, was of
no consequence, as the appellants were entitled to the summaries of statements before
the commencement of the trial to enable them to prepare properly. The denial of that
right, according to the argument, carried with it the inevitable result that the appellants'
constitutional rights to a fair trial, in terms of s 25 (3) of the Constitution of the Republic
South Africa Act, 200 of 1993 ("the interim Constitution"), had been violated.
Counsel for the appellants submitted, moreover, that the issue of an unfair trial
5
could not be decided by this court. This argument was based on the provisions of s 17
of Schedule 6 to the Constitution of the
Republic
of
South Africa
Act, 108 of 1996 ("the
new Constitution") which reads:
"All proceedings which were pending before a court when the new
Constitution took effect, must be disposed of as if the new Constitution
had not been enacted, unless the interests of justice require otherwise."
According to Mr Notshe's submission, as this matter was pending in this court
when the new Constitution took effect, it had to be dealt with in terms of the provisions
of the interim Constitution which was in force during the trial in the court a quo. He
argued that the denial of a right to a fair trial was a violation of a fundamental right
entrenched in chapter 3 of the interim Constitution; that in terms of ss 98 (2)(a) and (3)
read with s 101 (5) thereof this court has no jurisdiction to adjudicate upon the matter;
and that the issue should be referred to the
Constitutional Court
in terms of s 102 (6).
It was further submitted by the appellants' counsel that the interests of justice did not
require that the issue should be disposed of in terms of the new Constitution.
6
Nothing turns on the fact that in the court a quo counsel had requested to be
furnished with summaries of the statements of prosecution witnesses and not disclosure
of the complete contents of the statements. The appeal was indeed argued on the basis
that the decision of the
Constitutional Court
in Shabalala and Others v Attorney-General
of
Transvaal
and Another
[1995] ZACC 12
;
1996 (1) SA 725
was to be applied to the facts of this case.
And in the light of that decision counsel for the respondent, quite correctly, conceded
that the defence should have been provided with access to the statements of the State
witnesses before the commencement of the trial. He submitted, however, that the
appellants' right to a fair trial had not been violated because the statements had been
made available to the defence a considerable time before the closure of the State case.
This brings me to the question whether this is a matter which should be referred
to the
Constitutional Court
to enable that court to rule on the fairness of the proceedings.
One of the facts that is of significance in this regard, in my view, is that it has already
been held by the Constitutional Court that "blanket docket privilege" cannot be invoked
by the State tojustify the withholding of witnesses' statements. As Mahomed DP put
7 it in Shabalala's case at 748 G-H (para 50)
"there appears to be an overwhelming balance in favour of an
accused person's right to disclosure (of statements) in those
circumstances where there is no reasonable risk that such
disclosure might lead to the disclosure of the identity of informers
or State secrets or to intimidation or obstruction of the proper
ends of justice."
It is also appropriate to refer to the same learned judge's comments in S v Shikunga and Another
1977 (2) SACK 470 (
Nm
SC
) in relation to the consequences of
a violation of one or other constitutional right in a criminal trial. He said the following
at 484 b-f
"It would appear to me that the test proposed by our common law is adequate in relation to both constitutional and non-
constitutional errors. Where the irregularity is so fundamental
that it can be said that in effect there was no trial at all, the
conviction should be set aside. Where one is dealing with an
irregularity of a less severe nature then, depending on the impact
of the irregularity on the verdict, the conviction should either
stand or be substituted with an acquittal on the merits.
8
Essentially the question that one is asking in respect of
constitutional and non- constitutional irregularities is whether the
verdict has been tainted by such irregularity. Where this question
is answered in the negative the verdict should stand. What one
is doing is attempting to balance two equally compelling claims -
the claim that society has that a guilty person should be
convicted, and the claim that the integrity of the judicial process
should be upheld. Where the irregularity is of a fundamental
nature and where the irregularity, though less fundamental, taints the conviction the latter prevails. Where however the irregularity
is such that it is not of a fundamental nature and it does not taint
the verdict the former interest prevails. This does not detract from the caution which a court of appeal would ordinarily adopt
in accepting the submission that a clearly established
constitutional irregularity did not prejudice the accused in any
way or taint the conviction which followed thereupon."
The parameters which are relevant for the purposes of this appeal were dealt with
in the aforesaid decisions. All that we have to decide, therefore, is whether, within these
parameters, the trial court was correct in holding that the appellants were not deprived
of a fair trial. It was held in S v Khan 1997 (2) SACK 611 (SCA) at 618 b-e that despite
the constraints placed on the jurisdiction of this court by the interim Constitution, the
court was at liberty, and indeed required, to determine whether the trial in the court a
9 qu
o was fair. In Khan's case the question was whether the admission of the appellant's
confession rendered his trial unfair because he was not informed of his right to legal
representation before making the confession. This court held that this was an issue that
it should decide in the exercise of its appellate function. A similar situation arises in the
present appeal. The principle laid down in Khan's case should therefore be applied to
the facts of this case unless we are satisfied that it was clearly wrongly decided. We are
not so satisfied and no contention to this effect was advanced. From this it follows that
this court is competent, if not obliged, to decide whether the appellants were deprived
of a fair trial. Consequently this matter does not fall to be considered by the
Constitutional Court.
The remaining question on the preliminary point is whether the appellants' rights
were violated. The submission of the appellants' counsel was that the failure to supply
the summaries of statements of each witness before the commencement of the trial per s
e amounted to a denial of the right to a fair trial which justifies this court in setting aside
the convictions. As Mahomed C J pointed out in Shikunga's case at 483 i to 484 b,
10
it is not every constitutional irregularity committed by the trial court that justifies the
court in setting aside the conviction on appeal. Whether or not there has been a fair trial
must ultimately be answered having regard to the particular circumstances of each case
(see Shabalala's case 743 C-D, paras 35 & 36).
It is common cause in this case that the statements of the prosecution witnesses
who had not yet testified were handed to the defence in August 1994. It is true that the
statements of the witnesses who had previously testified were not delivered to the
defence but counsel for the State offered to furnish the defence with their statements if
they were required. No requests for statements made by the defence were refused.
There is also no reason to doubt that the court would have acceded to the defence's application for the recall of any witness whose
evidence had been concluded, but no
application for any such recall was made.
Although the initial refusal to furnish the appellants with statements of
prosecution witnesses was a constitutional irregularity, it is not, in the circumstances of
this case, a ground for setting aside the convictions. Unlike other conceivable classes
11
of irregularity which are irremediable once they have occurred, this irregularity was
potentially remediable. It is therefore not possible to regard it as an irregularity of so
fundamental a kind that it immediately vitiated the trial and necessitates setting aside the convictions. It is necessary therefore
to have regard to the conduct of the trial as a whole
in order to decide whether the irregularity persisted and thus tainted the convictions and
resulted in an unfair trial. In August 1994 the statements of prosecution witnesses were
made available to the defence. Any initial unfairness attending the trial was thereby
purged. At that stage the State case had not been closed, the defence could have applied
to recall witnesses who had already testified and sufficient time was available to consider
the contents of the statements and to prepare for the further conduct of the trial. Under
these circumstances the contentions of the appellants' counsel on the preliminary point
cannot succeed. It may be noted that the full court of the Cape Provincial Division in Nortje and Another
v Attorney-General, Cape, and Another
1995 (2) SA 460
was not
prepared to accept the proposition that a failure to make pre-trial disclosure of the
statements of witnesses ipso facto rendered the trial unfair although later disclosure of
statements during the trial was made (at 483 B-D). But it should be emphasised that
12
this does not mean that it is open to the State, as a matter of course, to postpone
disclosure of the statements of prosecution witnesses provided only that they are
disclosed at some time before the closure of its case. Disclosure of statements should
usually be made when the accused is furnished with the indictment or immediately
thereafter in accordance with the practice suggested in Shabalala's case at 752 A-F
(para 56).
I now turn to deal with the evidence. The murder charges arose out of the
deaths of Mr and Mrs Taljaard, an elderly couple who resided at 3 Graham Street,
Bedford. Their dead bodies were discovered at their home by Sgt Thomas, a member
of the South African Police Services, at about 20h30 on Sunday 4 April 1993. Mr
Taljaard's body was found in an outside room which adjoined the garage and Mrs
Taljaard's in her bedroom. Both deceased had died as a result of strangulation. In
addition, Mr Taljaard had received a blow to the right side of his head which had caused
a fracture of the skull, and blunt force had been applied to Mrs Taljaard's head and face.
Various articles which had belonged to the deceased were missing from the house. It
13
is not disputed that both deceased had been murdered and robbed.
What was in issue at the trial was the identity of the assailants but in this court
Mr Notshe, quite correctly, conceded that the second appellant's guilt had been
established. He submitted, however, that the evidence fell short of establishing the first
appellant's guilt beyond reasonable doubt. One of the grounds relied upon by the trial
court for convicting the first appellant was that he was in the company of the second
appellant - who was described by the trial court as one of the persons who had
undoubtedly committed the murders - on the morning of the commission of the offences.
For this reason it is desirable to set out the factual findings which formed the basis of the
second appellant's conviction.
The trial court held that the second appellant had made two confessions in which
he admitted having taken part in the murders and the robbery. The confessions were
made to Mlungisi Sydney Mali, an awaiting trial prisoner, on 27 April 1993, and to
Francois Nicholaas Vorster, a magistrate of Bedford, two days later. The second
14
appellant was also implicated by the evidence of Mabuti Smile, the fifteen year old son
of the first appellant. Mabuti testified that the second appellant, shortly after the
commission of the offences, had set alight to a suitcase which had been taken down from
the roof of the shack in which the second appellant was living. The suitcase, which had
been concealed under plastic sheeting on the roof, fitted the description of a suitcase that
had been in the Taljaards' house and had been removed from it on the day of the
murders. In accordance with the second appellant's instruction, Mabuti ensured that the
suitcase was completely burnt out. On the same day Mabuti noticed a gold pen in the
second appellant's room. The pen, which was identified by Mr. and Mrs. Taljaards'
daughter, Lea Magdalene Taljaard, as the property of her late father, was inscribed with
Mr Taljaard's name. Mabuti also told the trial court that while cleaning a fowl run on
the property where the appellants lived, he came across a peanut butter jar that
contained, among other things, items of jewellery and a watch. Lea Taljaard testified
that the jewellery had belonged to her mother and the watch to her father. According
to Mabuti the second appellant had earlier told him that the jar containing these items
was in the fowl run and that it belonged to him (the second appellant). Another witness,
15
Caroline Dweza, confirmed that she had observed Mabuti overseeing the burning of the
suitcase. The second appellant's evidence, to the effect that he had nothing to do with
the killing of the deceased or the robbery, was rejected by the trial court.
Mrs Topsi Lubisi, a 74 year old woman who had worked for the deceased for
some 25 years and was employed by them at the time of the murders, testified that the first appellant was in the company of the second
appellant on the morning of 4 April.
Before I deal with the evidence of Mrs Lubisi it is to be observed that an accused
person cannot be convicted on the grounds that he or she was in the company of a co-
accused whose guilt has been established solely by means of a confession. If the alleged
association is to be relied upon in proof of the case against the first-mentioned person,
there must be evidence of the co-accused's guilt, sufficient to support his conviction,
outside of the confession. In other words, it must be proved by evidence admissible
against the former that the latter is guilty. This principle which appears, inter alia from
the decision of R v Baartman and Others
1960 (3) SA 535
(A) at 542 B-H, seems to
16
have been overlooked by the trial court. However, Mr Notshe conceded that there was
sufficient evidence, apart from the confession, which justified the conviction of the
second appellant. And if regard is had to the evidence of Mabuti Smile, which was
accepted by the trial court, this concession was correctly made.
It seems to be reasonably clear that Mr. and Mrs. Taljaard were killed on the
morning of Sunday 4 April, in all probability before 08h00. It was Mr. Taljaard's habit
to go by car to buy the newspaper in the morning and to return to his home in time to
listen to the 8o'clock news. He would leave his car parked in front of the house. On
4 April his car had not been taken out of the garage and his clothed body was found in an outside room. Topsy Lubisi said that the
two appellants arrived at her house on the
Sunday morning. The first appellant was to have repaired a cupboard for her on that day
but he came to tell her that he was not feeling well and would attend to the repair on the
following day. Mr Notshe criticised her evidence mainly on the ground that she was
confused and uncertain about dates and times. The trial court, however, accepted that
the appellants had been at her house on the Sunday morning. She was convinced that
17
the visit to her house took place the day before the appellants were arrested and it is
common cause that they were arrested for the first time on 5 April. In my view the trial
court's assessment of her evidence cannot be faulted.
The fact that the appellants were together at Mrs Lubisi's home on the morning
of 4 April is not in itself a matter of crucial significance. There was no certainty about
the time when they arrived at her home, which was a considerable distance from the
deceased's house. What is of greater significance is the fact that it was put to Mrs
Lubisi under cross-examination that the appellants would deny that they had been to her
house on the morning in question. Furthermore, Mrs Lubisi testified that the first
appellant had worked in the Taljaards' garden on Saturday mornings. Her evidence in
this regard was confirmed by Mabuti Smile and Falithanwa Gilbert Nyatela, who worked
for the Taljaards as a gardener on week days, and was accepted by the trial court. It was
put to those witnesses by counsel for the appellants that the first appellant would deny
having worked for the Taljaards. But the first appellant did not give evidence.
18
Caroline Dweza testified that after she had seen Mabuti burning the suitcase she
came across the first appellant. He wanted to know what she had asked Mabuti about
the suitcase and he struck her in the face. She was suspicious about the burning of the
suitcase and reported the matter to the police. It was put to Mrs Dweza that the first
appellant would deny that he had struck her.
Mr Notshe argued that Mrs Dweza was an unsatisfactory and unreliable witness
whose evidence should be disregarded. Her evidence is indeed open to some criticism
but it was accepted by the trial court and was not contradicted by the first appellant. In
my view there is no reason why we should not take her evidence into account in
assessing whether the first appellant's guilt has been proved beyond reasonable doubt.
The most crucial evidence implicating the first appellant was the discovery of
certain items in his shack by members of the police. The first appellant's shack was one
of a few structures in a complex that also contained a fairly substantial dwelling house.
The first appellant, according to the evidence, used his shack as a shop from which he
19
sold groceries and as a place where he sometimes slept. One of the other shacks was
occupied by the second appellant who had arrived in Bedford from Cradock five days
before the murders and had rented the shack from the first appellant. In the grounds of
the complex there was also a dog enclosure and the fowl run where Mabuti had found
the peanut butter jar.
On the morning of 29 April members of the South African Police Services, in the
presence of the first appellant, carried out a search of his shack. Concealed above the
ceiling were various items of jewellery, including an engagement ring, that had previously
belonged to Mrs Taljaard, and items of clothing that had belonged to Mr Taljaard.
Hidden behind a panel near the door were two of Mr Taljaard's pens, including the gold
pen inscribed with his name, and, on the floor of the shack among some tools, was a
knife which was identified as a knife usually kept on the refrigerator in the Taljaards'
kitchen. When the police found the goods, Lieutenant Rautenbach, who was in charge
of the operation asked the first appellant for an explanation. The first appellant said that
he did not know how the goods had come to be there. One of the police witnesses, Sgt
20
Maswili, testified that the first appellant had made an attempt to flee when the goods
were found in the ceiling and that he, Maswili, had prevented him from doing so.
The second appellant also gave evidence about this incident. He said that he was
present when the goods were found, that the first appellant had asked who had put them
in his room and that he, the second appellant, had replied that it was Maswili.
According to the police, however, the second appellant was not present when the goods
were found and moreover the second appellant's evidence was properly rejected as false
by the court a quo. His version of this incident does not require further consideration.
While the search of the first appellant's shack was being carried out, two
members of the police, Sgt Botes and Sgt van Zuydan, discovered certain goods that had
been buried in the dog enclosure on the property occupied by the first appellant. The
goods consisted of a carry bag which contained shoes and toiletries all of which had
come from the Taljaards' house.
21
That concludes a brief summary of the relevant evidence and it now becomes
necessary to consider whether the trial court was correct in inferring that the first
appellant had committed the crimes with which he was charged. In assessing the
evidence against the first appellant the court a quo held that the most important evidence
against him
"concerns the finding of property identified as having been stolen from
the deceased in the ceiling of the shack in which he slept, and buried in
the dog enclosure in his yard."
The discovery of the stolen goods in the dog enclosure does not seem to me to be evidence that necessarily implicates the first appellant
in the commission of the
offences. The second appellant, who is known to have taken part in the murders and the
robbery, had access to the dog enclosure and so did other persons living on the property.
There is no evidence which is admissible against the first appellant that shows that he
buried the property himself or that he knew that it was there. It follows, therefore, that
22
the presence of stolen goods in the dog enclosure is not a fact that should be taken into
account against the first appellant.
The same considerations do not apply to the stolen property found in the first
appellant's shack. Counsel for the appellants submitted that, according to the evidence,
the goods could have been placed in the gap between the ceiling and the roof by someone
outside the structure. This is a possibility, although a remote one, but it does not explain
how the pens came to be concealed in the panel next to the door or why the Taljaards'
knife was among the tools on the floor. Mr Notshe, submitted, however, that other
persons had access to the first appellant's room while he was in prison during certain
periods between 5 and 29 April. It is true that on one or two occasions during the first
appellant's detention his son, Mabuti, had obtained the key to his shack. But the
structure had remained locked at all times and there seems to be no reason why any
person other than the first appellant would have kept the Taljaards' property in the room
which he occupied. The first appellant did not give evidence and, while there was no
onus on him, it is significant that he furnished no explanation for the presence of the
23
goods in his shack.
The question that remains is whether, on the facts that I have outlined, the first
appellant's guilt on the murder and robbery charges was proved beyond reasonable
doubt. His counsel submitted that the evidence against him was purely circumstantial
and, at worst for the first appellant, it established only that he was guilty of theft or
receiving stolen property knowing it to have been stolen. It was also submitted in this
regard that the trial court inferred that the first appellant was guilty of the crimes of
which he was convicted because it assumed that the murders had been committed by two people. Very little was said in support of this
submission and, in my view, there is
nothing in the judgment of the court a quo that suggests that it acted on the assumption
that there were two perpetrators or that it convicted the first appellant by relying on this
supposition.
It is, of course, quite clear - and this was accepted by Mr Notshe - that an accused
person's possession of recently stolen goods may give rise to the inference that he or she
24
stole them. It may also be possible, in an appropriate case, to infer that the possessor
of the goods had committed some other offence (see S v Nkomo and Another
1966 (1)
SA 831
(A) at 833 C; S v Parrow 1973(l)SA 603(A)at 604C-D). What has to be
decided in each case is whether the only reasonable inference to be drawn from the
totality of the particular facts is that the accused committed the offences in question.
The facts of this case show that the first appellant had worked for the Taljaard
couple. He must have had some knowledge of their habits and the lay-out of their
house. Through his counsel, however, he falsely denied that he had worked for the
deceased or, indeed, that he had ever set foot on their property. It was also established
that he was in the company of the second appellant at Mrs Lubisi's house on the morning
of the murders and at some time after the offences had been committed. Again, through
his counsel, he denied that he was at Mrs Lubisi's house on the day in question. On 29
April, some three or four weeks after the murders and robbery, an assortment of the
stolen goods was found in his room. He failed to give evidence. There is also a clear
link between the two appellants. The second appellant, who, as I have pointed out,
25
undoubtedly took part in these offences, had arrived in Bedford only five days before the
murders. He did not know the Taljaards. He rented a shack from the first appellant in
the latter's yard, the two appellants were together on the morning after the Taljaards had
been killed and the stolen pen that was seen in the second appellant's room was later
found in the first appellant's shack.
The only reasonable conclusion to be drawn from the totality of all of the facts,
including the first appellant's failure to give evidence, is that he stole the goods from the
Taljaards' house, According to the evidence the Taljaards' property could only have
been removed from their house at the time of the murders. It follows from this that the 6rst appellant must have taken part in the
murders and the robbery and that in doing so
he and the second appellant had acted in concert. It cannot be reasonably inferred, in
all the circumstances, that only the second appellant was a particeps criminis.
26
The result is that the appeals of both appellants against their convictions on all
three counts are dismissed. As the sentence of death is no longer competent the
sentences on counts 1 and 2 are set aside and the matter is remitted to the court a quo
to enable it to pass sentence afresh on those counts.
L S MELUNSKY, A J A
Smalberger J A)
Marais J A) concur

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