S v Khanye and Another

• Jurisdiction: South Africa
• Judgment Date: 10 August 2017
• Citation: 2017 (2) SACR 630 (CC)

S v Khanye and Another
2017 (2) SACR 630 (CC)

2017 (2) SACR p630

Citation	2017 (2) SACR 630 (CC)
Case No	CCT 86/16; [2017] ZACC 29
Court	Constitutional Court
Judge	Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J.
Heard	March 22, 2017
Judgment	August 10, 2017
Counsel	C Steinberg and C Tabata for the applicants.; NG Ndimande for the state.

Flynote : Sleutelwoorde

Evidence — Admissibility — Hearsay evidence — Admissibility of in terms of G s 3 of Law of Evidence Amendment Act 45 of 1988 — Admissibility as against accused of extra-curial statements by co-accused — Such statements inadmissible.

Headnote : Kopnota

The two applicants and their five co-accused were convicted in the High Court of murder and robbery with aggravating circumstances. They were sentenced H to life imprisonment in respect of the count of murder and to terms of imprisonment for the robbery and certain firearm offences. They applied for leave to appeal against their convictions and sentences on the same ground that had been successful in appeals by three of their erstwhile co-accused, namely that the only evidence against them was that of extra-curial statements made by their co-accused. Their application for I leave to appeal was late by more than two years.

Held, that, although the explanation provided by the applicants for the late filing of their application for leave to appeal left much to be desired, their having relied on fellow prisoners who were studying law to assist them in drafting and submitting their applications, there were prospects of success and the state would suffer no prejudice. It was therefore in the interests of justice J that condonation be granted. (See [16] – [17].)

2017 (2) SACR p631

Held, further, that, there being no evidence other than the extra-curial statements A made by their co-accused incriminating them, and that such evidence being inadmissible, the convictions and sentences of the applicants had to be set aside. (See [27] – [29].)

Cases cited

S v Litako and Others 2014 (2) SACR 431 (SCA) (2015 (3) SA 287; B [2014] 3 All SA 138; [2014] ZASCA 54): referred to

S v Matjeke [2013] ZANWHC 95: reversed on appeal

S v Mhlongo; S v Nkosi 2015 (2) SACR 323 (CC) (2015 (8) BCLR 887; [2015] ZACC 19): applied

S v Molaudzi 2015 (2) SACR 341 (CC) (2015 (8) BCLR 904; [2015] ZACC 20): applied C

S v Ndhlovu and Others 2002 (2) SACR 325 (SCA) (2002 (6) SA 305; [2002] 3 All SA 760; [2002] ZASCA 70): not followed.

Legislation cited

The Law of Evidence Amendment Act 45 of 1988, s 3: see Juta's Statutes of South Africa 2016/17 vol 1 at 2-764.

Case Information

C Steinberg and C Tabata for the applicants.

NG Ndimande for the state.

An application for leave to appeal out of time against convictions for murder and robbery and sentences imposed in respect thereof in the North West High Court, Mafikeng. E

Order

1.

Leave to appeal is granted.

2.

The appeal is upheld.

3.

The order under case No CAF 08/2012 of the full bench of the F North West High Court of South Africa, Mafikeng, is set aside to the extent set out below:

(a)

The appeal by the sixth and seventh appellants against their convictions and sentences on counts 1, 2, 4 and 5 is upheld.

(b)

Their convictions on those counts are set aside.

(c)

The applicants must be released from prison immediately. G

Judgment

Mhlantla J (Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mojapelo AJ, Pretorius AJ and Zondo J concurring):

Introduction

[1] This case pertains to an application for leave to appeal against a judgment and order of the North West High Court, Mafikeng (trial court). That court had convicted the applicants and their five co-accused [1] based on the doctrine of common purpose on one count of I

2017 (2) SACR p632

Mhlantla J

murder A of a police officer, robbery with aggravating circumstances and unlawful possession of firearms and ammunition. The trial court sentenced the applicants to life imprisonment in respect of the murder count, 15 years' imprisonment for the robbery and six years' imprisonment for possession of firearms and ammunition. [2]

[2] B It is apposite at this stage to state that, on 22 March 2017, this court granted the following order:

'1.

Leave to appeal is granted.

2.

The appeal is upheld.

3.

The order under case No CAF 08/2012 of the full bench of the C North West High Court of South Africa, Mafikeng is set aside to the extent set out below:

(a)

The appeal by the sixth and seventh appellants against their convictions and sentences on counts 1, 2, 4 and 5 is upheld.

(b)

D Their convictions on those counts are set aside.

(c)

The applicants must be released from prison immediately.

(d)

Reasons for this order shall be given at a later date.'

[3] The reasons for our order are set out below.

Parties E

[4] The first applicant is Mr Samuel Sampie Khanye. He was accused 7 during the trial. [3] The second applicant is Mr Victor Zandile Moyo. He was formerly accused 8 in the trial court. [4] The respondent is the state as represented by the National Director of Public Prosecutions, F Mmabatho. [5] In order to understand the issues, it is necessary to set out the background.

Background

[5] On 3 August 2002, WO Dingaan Makuna (the deceased) arrived at his G home at Mothutlung, North West Province, with his service pistol tucked in his waist. There were two motor vehicles, a Toyota Camry and a bakkie,

2017 (2) SACR p633

Mhlantla J

parked outside his home. Two men armed with firearms entered the A premises and shot him three times in the presence of his daughter. He was taken to hospital where he died later that night. His service pistol was never recovered. [6] The applicants and their five co-accused were arrested. They were charged in the trial court with murder, armed robbery and unlawful possession of firearms and ammunition. B

Litigation history

Trial court

[6] Mr Khanye and Mr Moyo stood trial with their co-accused for murder (count 1), robbery with aggravating circumstances (count 2), C unlawful possession of a firearm (count 4), and unlawful possession of ammunition (count 5). [7] They pleaded not guilty to all counts. The state mounted the following evidence against them.

[7] After their arrest, all of the accused made extra-curial statements to the investigating officer and to a magistrate. Some had pointed out the house D of the deceased and the tavern where they had gathered before going to the deceased's house. During the trial, they challenged the admissibility of these statements and alleged that the statements had not been made freely and voluntarily. They alleged that the police had assaulted them and promised to give them money and release them on bail if they made the statements. Accordingly, they claimed, they acted under duress when the E statements were made and thus these were...