Director of Public Prosecutions, Transvaal v Mtshweni
Jurisdiction | South Africa |
Judge | Farlam JA, Cloete JA and Lewis JA |
Judgment Date | 27 September 2006 |
Citation | 2007 (2) SACR 217 (SCA) |
Docket Number | 52/06 |
Hearing Date | 17 August 2006 |
Counsel | D W M Broughton for the State. L M Manzini for the respondent. |
Court | Supreme Court of Appeal |
Lewis JA:
[1] The appellant in this matter, the Director of Public Prosecutions, Transvaal (the State) has reserved a question of law for decision by this Court in terms of s 319 of the Criminal Procedure Act 51 of 1977. The respondent, the second accused in the Court below, opposes the appeal. J
Lewis JA
The application by the State for the reservation of the question of law A was refused by the trial Judge, Seriti J, in the Pretoria High Court. The appeal on the question of law reserved lies before this Court with its leave. Before setting out the legal issue it is useful to outline the background.
[2] The respondent, Mr Eric Mtshweni, was charged with the murder of B Mrs A C Hennop, attempted murder of her husband, Mr Hennop, attempted robbery with aggravating circumstances of the Hennops, unlawful possession of a firearm and unlawful possession of ammunition. He was acquitted on all counts. So too was his co-accused.
[3] The evidence led by the State established that the Hennops lived on C a smallholding in the district of Brits. Hennop testified that early in the afternoon of Friday 10 October 2003 he and his wife left their home and travelled towards the town of Brits in a light delivery vehicle. Hennop was driving. While still on the gravel road leading to the road to town the Hennops were ambushed by two men. The vehicle was stopped. One of D the men approached the passenger side where Mrs Hennop was sitting. The other, armed with a firearm, approached the driver's side. Hennop, fearing that they would be killed, asked his wife to find his firearm which was apparently in the vehicle. He had what he called ''n klein Browning vuurwapentjie' (a 6.35 mm pistol). E
[4] The assailant on Hennop's side of the vehicle aimed his firearm at Hennop's head and fired. But as he did so, Hennop leaned his head back and the bullet passed him and struck Mrs Hennop on the right-hand side of her neck. Hennop then shot the assailant twice in the head. The assailant and the other man ran off. They did not take any property from F the Hennops. Hennop managed to drive home and his wife was taken to hospital by an ambulance summoned by their children. She died there some six weeks later on 23 November 2003 as a result of the gunshot wound to her neck.
[5] The only factual issue in dispute at the trial was whether the accused G were the assailants, since Hennop could not identify them. The State thus relied on circumstantial evidence to prove that the accused were guilty of the offences charged. Both accused denied all knowledge of the crimes, and claimed to have been elsewhere at the time the crimes were committed. Mtshweni testified that he had been in Soshanguve. There, H so he said, he had been robbed and shot twice in the head. He had been admitted to the Ga-Rankuwa Hospital for treatment of two gunshot wounds to the head on Friday 10 October. On Saturday 11 October, while in hospital, he was placed under arrest by Inspector Van Tonder, the officer investigating the crimes committed against the Hennops. I
[6] Dr Mchenga, a dentist, training at the time to be a maxillo-facial surgeon, gave evidence for the State that he had removed a bullet from Mtshweni's face on 1 March 2004. X-rays had revealed that there were two bullets lodged in his head, one in the right cheek and one behind the left ear. The latter could not be removed without adversely affecting Mtshweni's health. J
Lewis JA
[7] Van Tonder testified that the bullet that was extracted and the A firearm used by Hennop had been sent to the ballistics unit in Pretoria to determine whether the bullet had been fired by Hennop's firearm. The report from the ballistics expert, testified Van Tonder, stated that no determination could be made in this regard. The State did not lead the evidence of the ballistics expert. This is of crucial importance to the B question of law reserved by the State and I shall revert to it. Van Tonder's evidence-in-chief in this regard was as follows
'Mnr Broughton (for the State): Goed, het u 'n verslag ontvang van die ballistiese eenheid aangaande die ontleding van hierdie 6.35 mm pistool van mnr Hennop en die koeëlpunt wat uit die regter wang van beskuldigde nr 2 C verwyder is? - Dit is korrek, u edele.
Volgens die ballistiese eenheid kon daar bepaal word of die koeëlpunt uit die vuurwapen van mnr Hennop geskiet is? - Nee, u edele.'
[8] Counsel for Mtshweni did not object to the admissibility of this evidence. And it was not disputed during the course of the trial that the ballistics report was indeterminate: it neither implicated nor excluded D Mtshweni as the person whom Hennop had shot.
[9] The State did not call the ballistics expert, says Mr Broughton, because it appeared during the course of the trial, and prior to argument at the end of the defence case, that it would have been an exercise in futility, adding nothing to the evidence. There was other evidence, in its E view, that implicated Mtshweni.
[10] I shall not deal with all the evidence relied on by the State in its attempt to prove that Mtshweni was indeed the assailant who had shot Mrs Hennop. It is in my view sufficient to deal with evidence that the State regarded as conclusive. [1] This was evidence of a DNA match F between three samples of blood collected from the place where the shooting took place, on the same day, and blood taken from Mtshweni when in hospital.
[11] The evidence as to the collection of the samples and their testing was not contested by Mtshweni. His response was simply that the G conclusion had to be wrong. Sergeant Masilela, the DNA analyst who tested the samples, drew up a report which was tendered as an exhibit. Counsel for Mtshweni did not object to the admissibility of the report, which complied with the provisions of ss 212(4)(a) and 212(8)(a) of the Criminal Procedure Act 51 of 1977. The facts in the report were H confirmed in evidence by the expert.
[12] The 'chain' evidence relating to the collection, sealing, safekeeping, sending and receipt by the forensic laboratory in Pretoria was not placed . I
Lewis JA
in dispute. In brief, the evidence showed that blood was found on three A items on the scene of the shooting: on the soil in two places marked as D1 and D2 on a sketch plan drawn by an Inspector Ramongane, and on a can (C2), also marked on the plan. The correctness of the plan was admitted in terms of s 220 of the Act. The samples were sent to the forensic laboratory where they were analysed by Sergeant Masilela. B
[13] A sample of blood was drawn by Dr Mabandla from Mtshweni in the presence of Van Tonder. The sample was sealed with a serial number and signed by Mtshweni. It too, marked as 'A', was sent to the laboratory, where it was received by an assistant, Makaya, and was analysed by Masilela. Masilela identified sample A as the same C blood found on the soil D1 and D2, and on the can C2.
[14] As I have said, none of this evidence was disputed, Mtshweni simply insisting that the result of the DNA analysis was incorrect. He laid no factual basis for this. The State's argument was thus that there was irrefutable evidence that Mtshweni had been the assailant who had shot D Mrs Hennop and whom Hennop had shot twice in the head. It was accordingly not necessary to call the ballistics expert who could do no more than explain that her findings were neutral, and that this did not mean that the bullet extracted from Mtshweni's head had not been fired by Hennop's firearm. E
[15] In argument at the end of the trial Mr Broughton for the State tried to explain to Seriti J the decision not to call the ballistics expert to give evidence. Regrettably, the trial Judge did not understand the argument. It was also made clear that the defence had had sight of the report and had raised no objection to Van Tonder's evidence. F
[16] The following extracts from the argument reveal the Court's view on the importance of the ballistics evidence that could have been led. The quotation is preceded by a number of difficulties raised by Seriti J with the State's evidence and then continues:
'Court: Then the last question, where did accused No 2 (Mtshweni) get G injured? Who shot at accused No 2, because according to the ballistic report, the bullet that was removed from his face was not fired from the firearm of Mr Hennop. The big question is, where did he get injured? According to the State evidence, that bullet that they found on accused No 2 was not fired from the firearm of Mr Hennop. If that is the position, then my difficulty is, where did he get injured? If he was not injured at the scene, then it means that he must have H been injured at Soshanguve. As far as accused No 2 is concerned, that is my biggest problem. If he was not shot by the firearm that Mr Hennop had, then it means that he must have been shot at Soshanguve. That is the only evidence which is on record. If I am going to accept that the bullet that was found on his cheek was not fired by Mr Hennop, then the invariable conclusion is that he was shot at Soshanguve. Once I accept that he was shot I at Soshanguve, then of course the entire evidence of Martha Motsweni (the aunt) must go down the drain. If you can just address me on those six issues, because when I looked at your heads, they were not coming out that clearly.
Mr Broughton: M'Lord, firstly on the last question, I have dealt with the issue in my heads of argument, my written heads of argument. M'Lord, it is important to bear in mind, the evidence was, it could not be determined J
Lewis JA
whether the bullet that was extracted from the face of accused No 2 was fired A from Mr Hennop's firearm.
Court: According to the ballistic report.
Mr Broughton: According to the ballistic report, yes. Now, there is a big difference between, it was not fired - a categorical statement that it was not fired...
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