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[2019] ZASCA 132
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Ndimande v S (248/2018) [2019] ZASCA 132 (30 September 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 248/2018
In
the matter between:
FANIE
ARCHIBOLD
NDIMANDE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral citation:
Ndimande v The State
(248/2018)
[2019] ZASCA 132
(30 September 2019)
Coram:
Ponnan, Saldulker, Swain, Mbatha JJA and Hughes AJA
Heard:
22 August 2019
Delivered:
30 September 2019
Summary:
Evidence – admissibility of a pointing out where appellant’s
rights in terms of s 35 of the Constitution have been
infringed –
dock identification admissibility thereof – trial within a
trial – video footage of identification
of appellant not
submitted as evidence – identification must be such that
certainty is beyond reasonable doubt to place reliance
thereupon.
ORDER
On
appeal from:
Gauteng Division of the High Court, Johannesburg
(Mokgoatlheng J, Bam and Petersen AJJ) sitting as a court of
appeal:
1
The appeal is upheld.
2
The order of the full court is set aside and substituted with the
following order:
‘
The
appeal is upheld and the conviction and sentence of the appellant are
set aside.’
JUDGMENT
Hughes
AJA (Mbatha JA concurring):
[1]
The appellant was convicted in the
Gauteng Division of the High Court, Johannesburg (high court) on one
count each of murder, robbery
with aggravating circumstances,
attempted robbery with aggravating circumstances, unlawful possession
of a firearm, unlawful possession
of ammunition and three counts of
attempted murder. Cumulatively, he was sentenced to an effective term
of life imprisonment.
The appellant’s appeal against
conviction was dismissed by the full court. This is a further appeal
with special leave having
been granted by this court.
[2]
On 3 August 2003, at 22h00 and at
Amabele Spar, Ivory Park, Johannesburg, a gang of armed men wearing
balaclavas attempted to rob
the Spar store. The gang accosted two
staff members and a security guard whilst they proceeded to close the
store. A scuffle ensued.
Eventually the security guard was
dispossessed of his firearm and was fatally shot. The two staff
members managed to flee from
the store and sought assistance from
other security guards who were outside of the store. The entire
incident was recorded on video
cameras located inside the store. The
State alleged that the appellant was part of the assailants.
[3]
The issues in this appeal are whether
there was a positive identification of the appellant by the state
witness (Mr Hamilton Mbatha);
if such identification was reliable;
the admissibility of the evidence obtained through the pointing out
by the appellant and if
the admissibility thereof rendered the trial
unfair.
[4]
During the trial, the two staff members
testified that they could not identify the assailants as they were
wearing balaclavas. However,
the security manager, Mr Hamilton Mbatha
(Mr Mbatha), testified that he identified the appellant as one of the
assailants after
he had viewed the video footage a day after the
incident. He testified that the appellant was the only one who at
some stage removed
his balaclava. According to him, he also saw the
appellant at the store four months later when he was brought to
conduct a pointing
out with the police. At that stage he did not
inform the police about what he had seen on the video footage.
Instead, he identified
the appellant from the witness box on the day
that he testified. The so called dock identification. The video
footage was never
handed in as an exhibit by the State.
[5]
The trial court, though it is not quite clear in the judgment,
appears to have relied on the dock identification of Mr Mbatha
in
respect of the appellant. Mbatha’s evidence cannot be said to
be reliable as it was not corroborated. Most unfortunate
is that the
video footage which Mbatha places reliance upon was not produced in
court as evidence. The production of this evidence
was relevant as
Mbatha had the suggestive benefit of having seen the appellant during
the pointing out and viewing him in the dock.
The failure to adduce
such evidence was fatal to the State’s case.
[6]
Incidentally, the appellant was arrested
on 24 December 2003 at 02h00 by Metro police. He testified that he
was assaulted by the
Metro police officers for about 20 minutes. He
was only brought to the police station at 11h00 to be charged and
detained. During
this process, Inspector Mogoboya (Mogoboya) was one
of the officers present. The appellant’s evidence was that
after his
detention he was taken to an office where Mogoboya, who had
introduced himself as the investigating office, assaulted him and
encouraged
him to co-operate with the police officers. The
appellant’s evidence was disputed by Mogoboya who testified
that it was on
the very same day, whilst he escorted the appellant to
the holding cells that
the appellant
offered
to point out the crime scene. The recordings of the pointing out
proceedings, exhibit F,
revealed
that at
11h18 on 24 December 2003 a telephone call was made to Captain Van
Rooyen, of the Benoni Serious and Violent Crimes Unit,
for him to
assist in conducting the pointing out on 26 December 2003 at 12h00.
[7]
It is significant to note that on 25
December 2003 at 12h00, prior to the pointing out, the appellant had
signed a warning statement
in the presence of the investigating
officer (exhibit J),
wherein it was recorded that the
appellant wished
to make a statement in court.
Notwithstanding the request made by the appellant, the pointing out
still took place on the very next
day. The trial court admitted the
evidence of the pointing out on the basis that the appellant had
failed to inform Captain Van
Rooyen that he wanted to make a
statement at court. According to Captain Van Rooyen, during the
pointing out, the appellant made
the following utterance: ‘I
want to show out place where we robbed and shot people’
(exhibit F). The trial court further
concluded that the voluntariness
to point out the scene stemmed from the appellant’s willingness
expressed to Mogoboya on
24 December 2003 and his utterance to Van
Rooyen, which it concluded amounted to a confession. This conclusion
by the trial court
was reached against the backdrop that the
appellant had opted to exercise his constitutional right to remain
silent and make a
statement at court. After the trial court admitted
this evidence the appellant was convicted on the strength of the
pointing out
and the utterance made.
[8]
The trial court ruled that the evidence
of the pointing out was admissible and rejected the appellant’s
contention that it
should be excluded. The same position was adopted
by the full court, that the pointing out was done freely, voluntarily
and without
any undue influence. The full court found that the dock
identification on its own would not have ‘passed muster’.
Instead,
it concluded, that the evidence of the pointing out
corroborated the identification made by Mr Mbatha.
The full
court went further to state that: ‘the evidence of
identification and the evidence of the pointing out are mutually
corroborative, amounting to unassailable pr
oof
of the appellant’s involvement in the crime’.
[9]
Notably the trial court failed to
evaluate the evidence of Mr Mbatha’s
purported
identification of the appellant.
Neither, did it make a finding on its reliability. The video footage
relied upon by Mr Mbatha,
which was not handed into court, was yet
another issue that was not appraised by the trial court.
Consequently, the trial court
misdirected itself when it made no
findings on both the identification of the appellant by Mr Mbatha and
the video footage, which
was not handed in at court.
[10]
The appellant contends that the evidence
of the pointing out was improperly obtained, as it was obtained in
violation of his rights
to a fair trial. The admissibility of the
evidence obtained as a result of the pointing was challenged in the
trial within a trial.
The appellant was adamant that he was
instructed by one of the police officers, Inspector Lele Khumalo, who
acted as an interpreter
during the pointing out, what he had to point
out. In addition, he testified that the assault by the Metro police
officers and
Mogoboya prior to the pointing out coerced him to
co-operate. The trial court rejected the appellant’s version
that he was
assaulted on the strength of Mogoboya’s denial
thereof. On the other hand, it rejected Mogoboya’s denial of
the assault
on the appellant’s co-accused. The result, part of
Mogoboya’s
testimony was accepted,
whilst another part was rejected on a crucial issue of whether the
assaults on both the appellant and his
co-accused in fact occurred.
This begs the question whether reliance can be placed on Mogoboya’s
testimony.
[11]
It is trite that a court must exercise
caution when dealing with evidence of identification. A useful guide
on identification is
set out in LAWSA Volume 18 para 263, where the
authors state as follows:
‘
Judicial
experience has shown that evidence of identity should, particularly
in criminal cases, be treated with great care. Even
an honest witness
is capable of identifying the wrong person with confidence.
Consequently, the witness should be thoroughly examined
about the
factors influencing his or her identification, such as the build,
features, colouring and clothing of the person identified.
An early
identification before the trial (which is admissible as an exception
to the rule prohibiting previous consistent statements)
lends
credibility to the evidence. Particular care should be taken if the
only evidence connecting the accused with the crime is
that of a
single identifying witness; then the cautionary rule relating to
single witnesses should also be taken into account.’
[12]
In
this instance Mr Mbatha was a single witness
[1]
and as per the caution sounded above, the courts below had to ensure
that the evidence of the identification of the appellant was
reliable
beyond reasonable doubt.
[2]
On
the
contrary,
in my view, the
evidence
on record,
indicates
otherwise.
[13]
This
case is distinguishable from
S
v Mdlongwa
[3]
where the court had the video evidence before it, and not merely the
recollection of a witness, of what he could have seen on the
video
footage. I therefore do not deem it necessary to evaluate Mr Mbatha’s
evidence with regards to the video footage, as
this evidence was not
before the trial court. Significantly, at no stage, either after
viewing the video footage or when the pointing
out was conducted, did
Mr Mbatha advise the police of the
identification
of the appellant on the video footage
.
He is the only one who saw the footage with the appellant having
removed his balaclava. The other two staff members who had also
viewed the footage never testified to that effect. Incidentally, the
video footage relied upon by Mr Mbatha, as verification of
what he
saw, was not brought to court. I therefore cannot discount the
probability that Mr Mbatha recognised the appellant from
the pointing
out and not from the video footage as he asserted. If it is accepted,
as I think it must, the dock identification
of the appellant by Mr
Mbatha cannot be reliable beyond reasonable doubt. The full court
misdirected itself by placing reliance
on the identification
evidence.
[14]
There are material contradictions to the
evidence given by Mogoboya before the trial court as to how the
pointing out came about.
First, in his statement, which he wrote
shortly after detaining the appellant, he stated that he took the
appellant out from the
cells to interview him as opposed to his
testimony to the trial court that the appellant volunteered to do a
pointing out whilst
taking him to the cells to be detained; Secondly,
Mogoboya testified that he was not involved in the case but was
merely on standby
duties when he detained the appellant, however, in
his statement he states that he took the appellant out of the
cells and
interviewed him. Mogoboya struggled to explain these
discrepancies during cross-examination.
[15]
It
is my view that the trial court misdirected itself in the assessment
and reliance of the evidence of Mogoboya. It is trite, that
in the
evaluation of the evidence by the trial court and its approach to
credibility findings of the state witnesses’ evidence,
an
appeal court is reluctant to interfere with the trial court’s
findings.
[4]
However, given the
contradictions pointed out in Mogoboya’s evidence, the only
irresistible inference to be drawn by this
Court is that Mogoboya was
not an honest witness and he violated the rights of the appellant to
a fair trial.
[16]
Before us, counsel for the State
conceded that in light of the warning statement which was made prior
to the pointing out, it could
not be accepted that the pointing out
was made freely, voluntarily and without violation of the appellant’s
constitutional
rights.
[17]
From the appellant’s explicit
request in the warning statement, to make a statement in court, it is
clear that both courts
totally overlooked the appellant’s
rights in terms of s 35(1) of the Constitution which provides that:
‘
(1)
Everyone who is arrest for allegedly committing an offence has the
right-
(a)
to remain silent;
(b)
to be informed promptly-
(i)
of the right to remain silent; and
(ii)
of the consequences of not remaining
silent;’
In
addition, both courts also paid no attention to the provisions of s
35(5) of the Constitution:
‘
(5)
Evidence obtained in a manner that violates any right in the Bill of
Rights must be excluded if the admission of that evidence
would
render the trial unfair or otherwise be detrimental to the
administration of justice.’
[18]
It is unfortunate in this case that the
constitutional rights of the appellant were infringed: First, he was
detained without being
informed of such rights; Secondly, admissions
were elicited from him without warning him of the consequences of
making such admissions;
Thirdly, he was assaulted to compel him to
participate in the pointing out; Lastly, he exercised the right to
remain silent which
was ignored and the pointing out proceeded with
disregard of his election to make a statement in court.
[19]
The
appellant challenged the admissibility of the evidence obtained
during the pointing out in a trial within a trial, as he complained
that the pointing out was
not
made
freely
and voluntarily, and was in violation of his constitutional rights.
In this instance, indeed the pointing out was conducted
in breach and
in violation of the appellant’s constitutional rights, thus,
the admissibility of such evidence by the courts
below, is tantamount
to bringing the administration of justice into disrepute. This was a
clear misdirection by both courts as
this evidence should have been
excluded and the admission thereof affected the fairness of the
appellant’s trial.
[5]
[20]
Considering the totality of the evidence I find the following: The
evidence of the pointing out was elicited from the appellant
after he
had exercised his constitutional right to remain silent and
to
give his statement in court; Mogoboya elicited from the appellant, if
he wanted to make a pointing out, whilst the appellant was
in police
custody, without warning him of his right to remain silent; It cannot
be rejected that the appellant had been assaulted,
as there was no
explanation for the time lapse between his arrest and detention in
the police cells; Mr Mbatha’s evidence
of the identification of
the appellant in the video footage was not supported by any
corroborative evidence, and was therefore
unreliable. Accordingly, I
cannot disregard that the appellant was coerced to point out as
instructed.
[21]
In
light of the above I share the sentiments expressed in
S
v Magwaza
[6]
:
‘
I
accept that, particularly in the current state of endemic violent
crime, the public reaction to the exclusion of such evidence
is
likely to be one of outrage. But we need to remind ourselves that s
35(5) is designed to protect ‘even those suspected
of conduct
which would put them beyond the pale.’
[22]
In conclusion, placing reliance on the
evidence of the identification of the appellant by Mr Mbatha when
there was no proof beyond
reasonable doubt and admitting the evidence
of the pointing out in spite of the infringements of the appellant’s
constitutional
rights, the trial was rendered prejudicial and unfair
to the appellant. I find that the state failed to prove the case
against
the appellant beyond a reasonable doubt and that his
constitutional rights were violated, accordingly the appeal succeeds.
[23]
The following order is made:
1
The appeal is upheld.
2
The order of the full court is set aside and substituted with the
following order:
‘‘
The
appeal is upheld and the conviction and sentence of the appellant are
set aside.’
___________________
W Hughes
Acting
Judge of Appeal
Swain JA (Ponnan and
Saldulker JJA concurring):
[24]
I have read the judgment of my colleague
and agree with the outcome of the appeal, but for the most part
arrive at that conclusion,
via a different route. I thus deem it
necessary to set out my approach to the issues in a separate
judgment. The evidence implicating
the appellant was his
identification by
Mr Hamilton Mbatha
,
based upon security video footage of the robbery, as well as a
pointing out made to Captain van Rooyen by the appellant, on 26
December 2003.
[25]
As regards the identification of the
appellant by Mr Mbatha:
it is not necessary
to deal with the issue raised by appellant’s counsel, as to
whether the video footage constituted real
evidence or documentary
evidence and whether the evidence of Mr Mbatha, as to what he
had seen on the video footage, amounted
to inadmissible opinion
evidence. This is because it is quite clear that the identification
was totally unreliable. Not only did
Mr Mbatha see the appellant for
the first time in a compromising situation, namely, in the company of
the police during the pointing
out but he also based his
identification upon the video footage that he had seen some time
before. No evidence at all was adduced
by the State as to the video
footage. Self-evidently the reliability of his subsequent
identification of the appellant as a single
witness, cannot be
properly assessed in the absence of the video footage, upon which his
identification of the appellant, was entirely
based.
[26]
As regards the pointing out by the appellant:
The
following evidence is relevant to the issue of whether the appellant
did so, freely and voluntarily;
(a)
The appellant testified, that when he
was arrested by the Metro police on 24 December 2003 at 02h00,
he was assaulted.
In the absence of any
compulsion, it has to be asked whether the evidence of the State is
probable, that upon his arrest the appellant
immediately stated that
he wished to take the Metro police officers to ‘another person
who was with him’ and that this
person ‘knows what
happened there at Spar because he was a security guard’ at
Spar.
Thereafter, the appellant was only
brought to the police station at 11h00 and charged.
The
extremely long period of nine hours, between the time of his arrest
and until he arrived at the police station, is not explained.
Other
than the arrest of the second accused, the evidence of the State did
not account for this period. In addition, as will be
seen, the
appellant was denied the opportunity of giving evidence of what
transpired during this period, which is relevant to whether
he was
subjected to further compulsion.
(b)
In the absence of any compulsion, it has to be asked whether the
evidence of the State is probable, that whilst Inspector Mogoboya
was
escorting both accused to the cells, he asked them whether they knew
anything about the matter, to which they both immediately
responded,
that they did. The improbability is compounded by the further
evidence, that having asked them whether they would have
any problem
in telling the police and showing them where the incident happened,
they both immediately responded, that they would
not. One wonders why
this alleged response by the appellant was such a revelation to the
police, if the evidence of the State was
the truth, that the
appellant on his arrest had already implicated his co-accused and
himself in the crime and had revealed where
it took place, namely at
the Spar. Simply put, this evidence raises serious doubts concerning
not only its veracity, but also the
veracity of the evidence of the
police that what was allegedly said by the appellant at the time of
his arrest, was not obtained
by compulsion.
(c)
During the main trial a warning statement from the appellant was
produced dated 25 December 2003, in which he stated ‘I
wish to
make statement at court’ presumably in answer to the question
‘Do you want to make a statement, answer question
or remain
silent?’ as part of the standard ‘Warning Statement’
form. Having elected to remain silent in his warning
statement on the
25 December 2003, it again has to be asked whether in the absence of
any compulsion, it is probable that he would
have decided to waive
this right on the following day, when the pointing out occurred.
Further, as will be seen, the appellant
was denied the opportunity of
giving evidence as to the circumstances surrounding the conclusion of
his warning statement and its
contents. This evidence was directly
relevant to the enquiry as to why the appellant, on the following
day, would waive his right
to silence which he had expressly
asserted, in his warning statement.
[27]
With regard to the appellant’s
evidence that he had been assaulted by the police, the trial court
accepted the evidence of
Inspector
Mogoboya, that he did not assault the appellant.
However, in respect of accused 2, the trial court rejected
Inspector
Mogoboya’s evidence that he did not assault
him, which ultimately resulted in the acquittal of accused 2. As
pointed out by
counsel for the appellant, it was common cause that
the appellant and accused 2 were arrested by the same Metro police
team and
were then taken to the police station, together. No cogent
reasons were furnished by the trial court, as to why it was prepared
to accept the reasonable possibility that the police officers
involved in the arrest and detention of accused 2 had assaulted him,
whereas it was not prepared to accept the reasonable possibility that
the same police officers, could have assaulted the appellant.
[28]
Regard being had to all of these deficiencies in
the evidence of the State, the trial court erred in concluding that
the appellant
had participated, freely and voluntarily, in the
pointing out. The approach of the full court to this issue was
somewhat different.
It held that the argument that the appellant was
forced to make the pointing out, ignored his evidence that he did not
do any pointing
out and had said nothing at all. The full court then
reasoned, that because the appellant had denied making a pointing
out, or
confession, no trial-within-in a trial had been called for
and the issue to be determined was one of reliability and not
admissibility.
However, the distinction sought to be drawn, was
artificial. This is because the thumbprint of the appellant appears
on the pro
forma, ‘Notes of Pointing out of Scene(s)’
recording certain answers of the appellant and he appears in photos
taken
during the pointing out. Quite obviously, the fact that the
appellant denied saying or doing anything, nevertheless required a
determination of whether the objective evidence of his participation,
was voluntary. In other words, his denial that he had participated
meant that it was incumbent upon the State to prove not only that he
had participated in a pointing out, but that he had done so
freely
and voluntarily.
[29]
In
S v Potwana
1994 (1) SACR 159
(SCA) 168 D–F, it was
held that the trial court had attached undue importance to the fact
that the appellants had lied, when
they had stated that they had been
told what to say, in their confessions. As a result, the trial court
rejected the evidence of
the appellants on the critical issue of
whether they had confessed voluntarily, on the principal if not
decisive ground, that they
had denied the truth of their confessions,
which were declared admissible. At 169 E–F, the following was
added;
‘
The
fact that they were lying (about not having made a statement) in this
regard must be seen in context and assessed accordingly.
One may
confidently conclude that these false assertions stem from the
erroneous, though understandable, perception that a failure
to
dispute the authorship or authenticity of a confession would, or
might, prove prejudicial even though at the end of the enquiry
the
confession is ruled out. After all, it requires a rather
sophisticated knowledge of the judicial process and the objectivity
of the presiding official to appreciate, and be confident, that no
such risk of prejudice exists. For this reason, it is a matter
of
common experience for an accused person to give false evidence in
this respect. This is not to say that this defect in their
evidence
is to be entirely disregarded. But it cannot, and ought not, to serve
as a cogent reason for rejecting their evidence
on the pertinent
question, namely, whether their confessions were as a result of
assaults and threats.’
It
was then held that the State had failed to discharge the onus of
proving that the confessions were freely made. Following this
decision, in
S v Ntuli
1995 (1) SACR 158
(T) at 166 C-D, it was held that the fact that an
accused says that the statement is false and has been made up by the
police,
does not mean that a trial-within-a-trial, does not have to
be held. It follows that the full court therefore erred. The result
was that the full court failed to consider, whether the trial court
had correctly decided that the appellant had freely and voluntarily
participated, in the pointing out.
[30]
Of greater concern with regard to the trial-within-a-trial, was a
misdirection committed by the trial court, in the conduct
of this
procedure. Counsel for the appellant pointed out that during the
trial-within-a trial, the appellant started testifying
that on the 24
December 2003 after his arrest, he had been taken to another place,
before being taken to the police station. The
Judge however
intervened, stating that it sounded as if the appellant was now
testifying concerning issues in the main trial. As
a result, the
legal representative did not lead any further evidence by the
appellant as to what transpired in the nine hours,
between his arrest
and his arrival, at the police station.
[31]
Later, during the trial-within-a-trial when the appellant wished to
testify about what had occurred on the 25 December 2003,
being the
day he made the warning statement and elected to remain silent, the
Judge intervened saying they were now venturing into
the main trial.
The appellant’s counsel however assured the appellant, that he
would be given an opportunity to give evidence
concerning the events
of the 25
December
2003, but continued to lead the appellant on the events of
26 December 2003, when the pointing out took place.
During
the main trial, the appellant again attempted to testify about the
events of the 25 December 2003, but the Judge repeatedly
interrupted
appellant’s counsel, holding that this should have been raised
during the trial-within-a-trial, as he had already
made a ruling, as
the Judge put it, regarding the ‘issue of rights.’
Counsel for the appellant (who did not represent
the appellant at the
trial) therefore correctly submitted that the appellant was prevented
from testifying about the events of
the 24 and 25 December 2003 in
both the trial within-a-trial and the main trial. In the result,
the appellant was denied the
opportunity of testifying as to the
circumstances surrounding the furnishing of his warning statement as
well as its contents,
and the events that occurred during the nine
hours between his arrest and his arrival, at the police station. This
evidence was
of vital importance to a proper assessment of the claim,
by the appellant, that he was compelled to participate in the
pointing
out.
[32]
As stated by this court in
S v Mkwanazi
1966 (1) SA 736
(A) at
742 H – 743A;
‘…
The
question of admissibility, as stated by the learned Judge himself in
the main judgment, must be decided by, and remains throughout
the
sole responsibility of, the presiding Judge. If other factors
touching upon the question of admissibility appear later in the
trial
he can and should reconsider any earlier decision, as he rightly did
in the present case.’
The
application of this principle in relation to a trial-within-a-trial,
was described in the following terms in
S v Muchindu
2000 (2)
SACR 313
(W) at 316G – H;
‘
A
ruling on admissibility in a trial-within-a-trial is interlocutory,
and may be reviewed at the end of the trial in the light of
later
evidence. This principle in itself shows that subsequent evidence in
the main trial may decisively affect the determination
of the issues
in the trial-within-the-trial.’ (Authorities omitted.)
[33]
As stated in Du Toit et al
, Commentary on the Criminal Procedure
Act
at RS 59, 2017 ch24-p66J-2, relying upon these authorities;
‘…
should
new facts bearing on the admissibility of a confession come to light
at a later stage, it is the court’s duty to reconsider
the
issue at that stage and not at the end of the trial, lest the accused
be cross-examined on what later transpires to be an inadmissible
confession. The prejudice caused to an accused in such an event
might… prove impossible to remedy by the subsequent exclusion
of the evidence. He might, moreover, be forced to testify in
circumstances in which he would have decided otherwise had the court
ruled the confession to be inadmissible.’
(Authorities
omitted)
At
the trial, counsel for the appellant brought this principle to the
attention of the Judge, but to no avail. The response of the
Judge
was that counsel had ample opportunity, to say anything he wanted to
say, in the trial-within-a-trial. The Judge therefore
committed
a grave misdirection in treating his ruling on the admissibility of
the pointing out as final and not interlocutory.
In doing so, he
compounded his error in excluding this vitally important evidence, in
the first place.
[34]
I accordingly agree with the submission by counsel
for the appellant, that the appellant did not enjoy a fair trial,
because his
constitutional right to challenge and adduce evidence,
was infringed by the trial court. First, he was prevented from
testifying
about the events between his arrest and his arrival at the
police station, some nine hours later. Second, he was prevented from
testifying about the events on the 25 December 2003, when he
made the warning statement, in which he elected to remain silent.
In
addition, the trial Judge committed an irregularity in deciding that
the ruling he made, concerning the admissibility of the
pointing out
was final and not merely provisional. This evidence was of vital
importance, in assessing whether the appellant participated
freely
and voluntarily, in the pointing out. The prejudice suffered by the
appellant was not addressed by the full court, as a
result of its
finding that because the appellant had denied making a pointing out,
or confession, no trial-within-a trial had been
called for and the
issue to be determined, was one of reliability and not admissibility.
[35] For these reasons I
agree that an order should issue in the terms set out in the judgment
of my colleague.
_____________________
K
G B Swain
Judge
of Appeal
Ponnan JA
[36]
It remains to comment on the conduct of counsel for the State.
Despite being informed on several occasions by the registrar
of this
court, that the heads of argument on behalf of the State had not been
timeously filed and that a substantive application
for condonation
was necessary, counsel simply failed to take any steps to put matters
to right. Eventually, it was only from the
bar in this court, when
the appeal was called on 22 August 2019, that unsigned heads of
argument came to be handed up on behalf
of the State. They consisted
of some six pages and dealt with the issues (if they dealt with them
at all) in a perfunctory fashion.
[37]
Given the unconvincing quality of the heads it is remarkable that it
took counsel as long as she did to prepare them. The heads
were
accompanied by what passed for an application for condonation, to
which was annexed a draft affidavit that had not been commissioned.
When we pointed out to counsel for the State, that these steps were
wholly inadequate to address the, by then, flagrant breaches
of the
rules, she sought a postponement of the appeal. We were not persuaded
that a postponement was justified and proceeded to
debate the merits
of the appeal with her. However, we did grant counsel leave to file
duly signed heads of argument, which was
to be accompanied by a
substantive application for condonation, by 28 August 2019. That has
since been done. Those have received
appropriate consideration.
However, as should be apparent from the judgments by my Colleagues on
the merits of the appeal and indeed,
as counsel for the State was
constrained to concede during argument, the conviction of the
appellant and resultant sentence could
not stand. We did intimate to
counsel then that in the light of the flagrant breaches of the rules
and the absence, in our view,
of any satisfactory explanation
therefore, that we felt obliged to bring the conduct complained of to
the attention of both the
National Director of Public Prosecutions
(NDPP) and the Director of Public Prosecution, Gauteng (DPP).
[38] The registrar of
this court is accordingly directed to furnish a copy of the judgments
in this matter, together with the draft
and final heads of argument,
applications for condonation and accompanying affidavits, as also,
the exchange of electronic communication,
to the NDPP and DPP.
___________________
V Ponnan
Judge
of Appeal
APPEARANCES:
For
the Appellant: Adv. E A Guarneri
Instructed
by:
Johannesburg
Justice Centre
Bloemfontein
Justice Centre
For
the Respondent: Adv. D E Zinn
Instructed
by:
The
Director of Public Prosecution, Johannesburg
The
Director of Public Prosecutions, Bloemfontein
[1]
It is trite that the evidence of a single witness is always treated
with caution and must be substantially
satisfactory
in all respects or corroborated –
S v Stevens
[2005] 1
All SA 1
(SCA) para 17.
[2]
S v
Charzen & another
2006 (2) SACR 143
(SCA);
[2006] 2 All SA 371
(SCA) para 11.
‘…
our courts have
emphasised again and again, in matters of identification, honesty
and sincerity and subjective assurance are simply
not enough. There
must in addition be certainty beyond reasonable doubt that the
identification is reliable, and it is generally
recognised in this
regard that evidence of identification based upon a witness’s
recollection of a person’s appearance
can be “dangerously
unreliable”, and must be approached with caution.’
[3]
S
v Mdlongwa
2010
(2) SACR 419.
[4]
S
v Pistorious
[2014]
ZASCA 47; 2014 (2) SACR 314 (SCA).
[5]
S v
Pillay & Others
2004 (2) SACR 419
at 431 a-c.
[6]
S v
Magwaza
2016 (1) SACR 53
para 22;
Key
v Attorney – General, Cape Provincial Division and Another
[1996] ZACC 25
;
1996 (2) SACR 113
(CC)
(1996 (4) SA 187
;
1996 (6) BCLR 788
; ZACC 25)
para 13.