Brief Summary

Criminal Law — Murder — Conviction and appeal — Appellant convicted of murder and sentenced to death; conviction referred back to court by Minister of Justice under General Law Amendment Act, 1992 — Evidence of pointing out by police crucial to conviction; absence of reliable evidence regarding time of death and appellant's presence with deceased creates reasonable doubt — Conviction set aside due to insufficient evidence to establish guilt beyond reasonable doubt.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings took the form of a statutory referral to the Appellate Division (then the Supreme Court of South Africa) by the Minister of Justice, acting ex parte on behalf of the convicted person, Mabuti Mamkeli. The referral was made under section 19 of the General Law Amendment Act 139 of 1992, which empowered the Minister to refer certain pre-27 July 1990 death sentence cases to the Court where doubt existed as to the correctness of a conviction, and where the conviction had not yet been considered by the Appellate Division.

The parties were Mabuti Mamkeli (as appellant, through the Minister’s referral) and the State (as respondent). The matter arose from a conviction in the King William’s Town Circuit Local Division (Van Rensburg J and assessors), where Mamkeli was convicted of murder and, with no extenuating circumstances found, sentenced to death on 2 February 1989. Leave to appeal against conviction was refused by the trial judge and a petition to the Chief Justice was unsuccessful.

Subsequently, the case came before the Appellate Division on sentence only, in terms of section 19(12) of Act 107 of 1990. In that earlier appeal, the Court held it had no jurisdiction in those proceedings to consider the conviction, but it set aside the death sentence and substituted a long term of imprisonment, while expressing reasons for doubting guilt and indicating that its judgment would be submitted to the State President for consideration of mercy under the Criminal Procedure Act 51 of 1977. After the enactment of the General Law Amendment Act 139 of 1992, the Minister invoked the new mechanism to place the conviction before the Court.

The general subject-matter of the dispute was whether the State had proved beyond reasonable doubt that Mamkeli murdered the deceased, in circumstances where the conviction depended principally on alleged self-incriminating pointings-out to the police and where significant credibility concerns arose regarding the police evidence.

2. Material Facts

The deceased, a 16-year-old schoolgirl, left home in the Stutterheim district at about 3 pm on Sunday 10 May 1987, intending to travel to Berlin. She carried a bag with clothing and books, and she had a plastic bottle of sour milk. At about 4 pm that afternoon she was seen near a tree close to Stutterheim station in the company of the appellant. The witness knew both of them well and heard the appellant complain that the deceased had stolen money from him and that he intended taking her to the police. It was undisputed that this was the last time the deceased was seen alive.

The deceased’s body was found on Sunday 17 May 1987 in a pool in the Kumakala river, upstream from a culvert under the Stutterheim–Queenstown national road, approximately 500 metres from the tree where she had last been seen. Her hands were tied behind her back, and a length of flexible copper piping was wound tightly around her neck. There were substantial bloodstains at the culvert, and certain clothing items were found downstream. It was common cause that the body was discovered in these conditions and that the cause of death was later determined to be strangulation by the copper piping.

On 17 May 1987, the police approached the appellant and requested him to come to the police station. There, when asked if he knew the deceased by name, the appellant denied knowing her and said he had never heard of her. He was arrested on suspicion of responsibility for her death. On 18 May and 20 May, the investigating officer, Detective Sergeant Mgwadla, in the appellant’s presence, found various articles along the river, including some of the deceased’s clothing, her milk bottle, and her books. At trial, however, it was disputed whether these were found because the appellant pointed them out, or whether the police themselves located them while the appellant was merely present.

A post-mortem was conducted on 22 May 1987. The district surgeon found genital injuries and expressed the view that these were indicative of forceful intercourse and concluded that the deceased had been raped prior to her death. The time of death could not be fixed with certainty; the surgeon’s evidence did not reliably place death on 10 May, and at most supported that the deceased had been dead “for quite a number of days” before examination. The appellant was charged with rape and murder; the trial court acquitted him on the rape charge, reasoning that the genital injuries were not proved to have been caused by a male organ or, in any event, prior to death, and noting the unexplained change in clothing when the body was found.

On 18 May, at approximately 9 am, the appellant was taken to a magistrate for the purpose of making a statement. The magistrate’s record reflected that the appellant alleged he had been assaulted and threatened by police to force him to make a statement, and that his left eye was swollen. A district surgeon (Dr Miller) examined the appellant later that morning and recorded a small superficial laceration near the left eyebrow. The State did not call the magistrate or Dr Miller, and no policeman was called to controvert the assault allegations. These aspects were treated as significant by the Appellate Division in assessing the broader reliability of the police investigation and evidence.

In his defence, the appellant raised an alibi, and it was not disputed on appeal that the trial court’s reasons for finding the alibi false beyond reasonable doubt were justified. The appellant nonetheless denied pointing out anything to the police. He admitted being taken to the river on two occasions but disputed the timing and maintained that the police showed him locations and that nothing was found as a result of any pointing out by him.

3. Legal Issues

The central legal question was whether the State proved beyond reasonable doubt that the appellant committed the murder, given that (on the Court’s assessment) the State case effectively stood or fell by the alleged evidence of pointing out and the inferential value to be drawn from items allegedly discovered as a result.

The dispute primarily concerned the application of law to fact and the evaluation of factual reliability: whether the evidence established, beyond reasonable doubt, that the appellant made self-incriminating pointings-out; whether any items were “discovered” by the police as a consequence of such pointings-out in the sense required by authority; and whether any pointing out (even if accepted) supported an inference of prior knowledge connected to guilt rather than innocent familiarity with an open and accessible scene.

A further issue of legal character arose from the distinction between an inadmissible statement and a pointing out, and the extent to which the State could rely on section 218(1) of the Criminal Procedure Act 51 of 1977 (as contemplated by the Court) to lead evidence of facts discovered as a result of an accused’s inadmissible statement. Closely connected to this was the need for the police evidence to be honest, reliable, and to establish a true “discovery” not already known or readily ascertainable.

4. Court’s Reasoning

The Court approached the matter by first identifying what evidence could, in principle, support the conviction if the pointing-out evidence were rejected. It considered the combination of the appellant being last seen with the deceased, post-mortem findings potentially consistent with death on 10 May, and the appellant’s false denial of knowing the deceased. The Court concluded that these features, even cumulatively, were insufficient to establish guilt beyond reasonable doubt without the pointing-out evidence, because the time of death could not be reliably fixed and therefore the appellant’s presence with the deceased lost incriminatory force if there was a reasonably possible interval between that sighting and death. The Court further treated the appellant’s false evidence as potentially relevant only where there existed a prima facie State case calling for an answer; it held that the “triad” did not constitute such a case and accepted that an innocent person might deny association with the deceased out of fear of suspicion, with reference to authority.

Having determined that the case stood or fell on the alleged pointings-out, the Court examined the requirements for the State to derive probative value from such evidence. It stressed that the State had to prove beyond reasonable doubt either that the appellant pointed out items and that the police “discovered” relevant facts as a result (in the sense contemplated by authority), or at least that the appellant’s conduct demonstrated prior knowledge of the locations that could rationally be linked to guilt. It also noted the clear distinction between a mere statement and a pointing out, and that no admissible incriminating statement by the appellant had been proved.

The Court then undertook a detailed credibility and reliability assessment of the police witnesses, especially Detective Sergeant Mgwadla, whose evidence was pivotal. It considered the limited corroboration offered by other police witnesses. Detective Sergeant Qata’s evidence, as the Court evaluated it, showed only that the appellant pointed out the pool and the abandoned car—features that were not hidden and could have been known to any person familiar with the area. Constable Makuzweni’s evidence corroborated Mgwadla only to the extent that the appellant pointed out the milk bottle, while Makuzweni’s account otherwise suggested that the police “found” the remaining items and differed from Mgwadla on whether the articles were easily visible.

The Court identified significant weaknesses and inconsistencies in Mgwadla’s version. It found it notable that Mgwadla omitted, in his evidence-in-chief, the fact that the appellant had been taken to a magistrate to make a statement and that the appellant had alleged assault by police; in cross-examination his explanation that he had “forgotten” these matters was treated as unacceptable. The Court linked these omissions to the broader concern that, in the absence of contradiction by the State, there was a reasonable possibility that the police had tried to coerce incriminating admissions and, when no statement materialised, sought to obtain “next best” incriminating evidence through a pointing out.

The Court placed substantial weight on contradictions between Mgwadla’s testimony and the contemporaneous entries in his official pocketbook relating to 18 May, including the chronology and timing of events. It considered Mgwadla’s explanation—that he recorded the times when he remembered events rather than the times when they occurred—implausible. The Court inferred that the true time of the visit to the scene on 18 May was probably after, not before, the appellant was taken to the magistrate, and that there was a substantial likelihood that Mgwadla gave false evidence on timing to suppress the inference arising from the aborted magistrate appearance and the assault allegations. The trial court’s view that these inconsistencies were not materially relevant was regarded as a misdirection because they bore directly on credibility and the risk of manufactured incrimination.

On the specific alleged pointing out of the copper piping from the abandoned vehicle, the Court found that Mgwadla’s evidence was inconsistent and not properly supported. It noted that only when pressed by the trial judge did Mgwadla assert that the accused pointed out the piping, and that there was no pocketbook record of a pointing out of the piping. The Court concluded that it was not adequately proved that the copper piping was pointed out by the appellant. Further, it held that it could not be accepted beyond reasonable doubt that the police were ignorant, on 18 May, of the fact that the deceased was killed by copper piping from the abandoned car; the car would in any event have been seen by police at the scene the previous day, and there was no indication that the piping was difficult to observe or locate by ordinary deduction. On this footing, the Court held that the “discovery” element was not established.

As to the articles found on 20 May, the Court held that the defects in Mgwadla’s evidence undermined the allegation that the appellant pointed out anything. Even if any pointing out occurred, the Court reasoned that the evidence did not justify an inference of prior knowledge because the items were not shown to have been hidden or uniquely locatable only by the perpetrator; on the evidence, they were the only items found and were not necessarily difficult for police to locate. The Court also regarded it as significant that, if the appellant truly had such knowledge, there was no clear reason why he would not have pointed out these items on 18 May when the police traversed the same area.

On the totality of these considerations, the Court concluded that the State failed to establish beyond reasonable doubt that the appellant incriminated himself by any pointing out, and that the foundational evidence supporting the murder conviction therefore collapsed.

5. Outcome and Relief

The appeal succeeded. The Court set aside the conviction for murder. It also set aside the sentence that had been imposed upon the appellant in the earlier Appellate Division proceedings (case 461/91), which had substituted a long term of imprisonment for the death sentence.

The judgment, as presented, did not record any separate order as to costs.

Cases Cited

S v Mamkeli 1992 (2) SACR 5 (A).

S v Mtsweni 1985 (1) SA 590 (A).

R v Samhando 1943 AD 608.

S v Sheehama [1991] ZASCA 45; 1991 (2) SA 860 (A).

Legislation Cited

Criminal Procedure Act 51 of 1977 (including section 218(1), as discussed).

General Law Amendment Act 139 of 1992 (section 19).

Act 107 of 1990 (section 19(12)).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Appellate Division held that the State failed to prove beyond reasonable doubt that the appellant made reliable, self-incriminating pointings-out, or that any relevant facts or items were “discovered” as a consequence of such pointings-out in a manner supporting an inference of guilt. The corroborative police evidence was weak, and the principal police witness’s credibility was materially undermined by omissions, inconsistencies, and implausible explanations, particularly concerning the timing and recording of events and the unexplained failure of the State to contradict the appellant’s allegations of assault prior to a contemplated statement to a magistrate. In the absence of the pointing-out evidence, the remaining circumstantial features did not establish guilt beyond reasonable doubt. The conviction and the substituted sentence were set aside.

LEGAL PRINCIPLES

A conviction must be proved beyond reasonable doubt, and where the State case depends materially on alleged self-incriminating conduct (such as a pointing out), the evidence establishing that conduct and its incriminating significance must be reliable and credible.

There is a legally significant distinction between a statement and a pointing out. Where no admissible statement is proved, the State cannot treat an alleged statement as if it were a pointing out; and if reliance is placed on the idea of “discovery” of facts as a consequence of an accused’s conduct, the evidence must establish a genuine discovery rather than the recovery of items already known, readily visible, or readily ascertainable by the police.

Evidence that objects were found in an open or readily observable area may weaken or negate the inference that an accused had special prior knowledge of their location stemming from guilt, particularly where the items were not shown to be hidden or uniquely discoverable only by the perpetrator.

A false denial by an accused (including denial of association with the deceased) does not, without more, prove guilt beyond reasonable doubt, especially where other incriminating facts are insufficient to create a prima facie case and where innocent explanations for the falsehood are reasonably possible on the evidence.

Ex parte: Minister of Justice; In Re: S v Mamkeli (460/92) [1992] ZASCA 217; [1993] 4 All SA 213 (AD) (27 November 1992)