S v M and Others

• Jurisdiction: South Africa
• Judge: Friedman ACJ, Galgut AJA and Kotzé JA
• Judgment Date: 30 June 1994
• Counsel: A Treurnicht for the first appellantC E More for the second appellantM M Leeuw for the third appellantDr L Els for the State
• Hearing Date: 01 March 1994
• Court: Bophuthatswana Appellate Division

Friedman ACJ:

On the night of 14 July 1992 and at Lemoenplaas in the J district of Madikwe, a young girl E M who was sleeping in an outbuilding

Friedman ACJ

A on the premises at the farm together with another young woman called Dorothy was raped by two males, after they had gained entry to her room by breaking in the door.

After they had raped her they left her room taking with them her watch and radio. She looked through a window in the room and she observed three B persons proceeding to the main house occupied by one W M. Upon seeing this she went to the neighbours to summon help.

On the same night and at the same place W M, the mother of the first appellant, was in her house. The house was broken into, in that a door of the house was broken. The room occupied by the said W M was ransacked. Windows of the house were broken, and it appeared that a safe had been C moved down the passage.

Tragically W M had been dragged from her house to a pit in the veld a distance of several hundred metres where she was later found in the sandpit. The sandpit measured approximately 45 metres deep and approximately two metres in diameter. She was dead, having died of D multiple injuries. This led to the appellants being charged with murder, housebreaking with the intent to rape and rape, and housebreaking with the intent to rob and robbery. The matter was heard in the General Division before Hendler J and assessors.

The first, second and third appellants were found guilty of murder, but in the cases of appellants 2 and 3 extenuating circumstances were found. The E second and third appellants were found guilty of rape, and also of housebreaking with intent to steal and the theft of a watch and radio being the property of E M. The first appellant was sentenced to death. The second appellant was sentenced to 18 years' imprisonment on the count of murder, 14 years' imprisonment on the count of rape, seven of which F were to run concurrently with the term of 18 years in respect of the count of murder, and on the count of housebreaking and theft he was sentenced to a period of six months' imprisonment to run concurrently with the aforesaid period of imprisonment.

The third appellant received a sentence of 18 years' imprisonment in G respect of the murder charge, seven years' imprisonment in respect of the count of rape to run concurrently with the aforesaid imprisonment on the count of murder, and in respect of the charge of housebreaking and theft a period of six months' imprisonment to run concurrently with the periods imposed on the counts of murder and rape.

Their convictions are before us on appeal pursuant to leave to appeal H having been granted by the Court a quo on 26 May 1993, on the basis that the conviction in respect of the second and third appellants was on the basis of a majority decision of the Court.

There are no appeals in respect of the sentences imposed.

A. The evidence relating to the count of murder

I The three appellants pleaded not guilty and disclosed the basis of their defence to the Court a quo. Their defences were alibis.

The substantial aspects of the State case consisted of statements made by the appellants to magistrates, and by certain pointings out and statements J made by them to senior officers of the Bophuthatswana Police.

Friedman ACJ

A The evidence aliunde relating to the murder of W M consisted of the following:

(a)

Lieutenant Thebe of the Bophuthatswana Police, testified to the effect that he attended at the scene of the crime at 3 am on the morning of 15 July. At Lemoenplaas, the house of the deceased, he B observed that the door of the house was broken, windows were broken and the deceased's bedroom was in a state of disarray. It appeared to him that a safe had been moved down a passage in the house.

The said Thebe had experience of identifying footprints and tracking them in sand. At daybreak in the morning, after C examining the terrain he observed three separate sets of footprints, plus those of the deceased leading from the said house to a pit in the veld a distance of several hundred metres. According to him an examination of the footprints indicated that a person had been dragged most of the way. This was no doubt the D deceased. In the vicinity of the pit he observed from the footprints there that a struggle had occurred. He also saw the sleeve of a dress and a woollen cap lying near the pit. This evidence was not put in dispute.

(b)

Patrick Molefe, a fireman stationed at the Mogwase Fire Station, testified that on the morning of 15 July 1992 he went to a pit in E the veld. He was lowered down into the pit where he found the deceased at the bottom of the pit and he lifted her out. She was dead. He estimated the size of the pit to be approximately 45 metres in depth and the diameter thereof to be approximately two metres. This evidence was not challenged.

(c)

F A report on a medico-legal post-mortem examination on the body of the deceased revealed that the cause of death was due to multiple injuries.

(d)

A certain L M M, the brother of the first appellant, identified the body of the deceased as his mother at the Phokeng Mortuary on 15 July 1992. He noticed that her ring was not on her hand and G her watch was missing as well. On the same day he visited the deceased's farm at Lemoenplaas and found the inside of the house to be in shambles.

(e)

The evidence of the said E M was to the effect that after she had been raped, she looked through the window of her room, and saw H three persons proceeding to the main house where the deceased lived.

B. The first trial within a trial

The first appellant made a statement to a magistrate, Mr C M Senoko, for I the district of Madikwe on 16 July 1992.

The interpreter present was one O T Mathedi. Ex facie the statement it appeared to have been freely and voluntarily made. It was common cause between the State and counsel for the first appellant, and correctly so in terms of s 219A of the Criminal Procedure Act 51 of 1977 that the first appellant had the onus of proving, on a balance of probabilities, that the J statement had not been freely and voluntarily made.

Friedman ACJ

A This occasioned a trial within a trial relating to this statement which was exh B in the Court below.

In the said trial within a trial the first appellant's testimony was to the following effect: what was recorded in his statement is what he related to the magistrate, but it was not the truth. After the death of B his mother, on seeing the scene of the crime, he was surprised to see that the windows of her house were broken.

Later he was incarcerated in a cell at the Mogwase Police Station by the police. He denied to the police that he was involved in any way in the death of his mother.

C He asserted that on 16 July 1992 he was taken to the veld by seven members of the CID. Among the seven were Lieutenant Dale the investigating officer in the case, and a Sergeant Seane who is known by the nickname of 'Shuffles'. He was conveyed by motor vehicle to the veld and was taken to some bushes. His clothes were removed and his hands and feet were tied. D Twenty-five litres of water, which had been removed from the vehicle, were poured over him, after he had been thrown to the ground, electric shocks were administered to his private parts. He described the procedure, in that he stated that two irons were attached to his testicles, shocks were administered, and when he attempted to remove these irons his hands received burns.

E He testified that the object of the electric shocks that he had received were to force him to tell the truth, in view of his repeated denials that he was in any way implicated in the death of his mother.

In consequence of the pain that he suffered as a result of receiving the electric shocks, he admitted to the police that he was the one who had F killed his mother.

He declared that when making the statement to the magistrate, he stated that in doing so he had acted in accordance with the wishes of the police, and had accordingly informed the magistrate that he had not been forced to make the statement. Consequently his case was and he testified that his G statement to the magistrate was induced by violence and threats and furthermore the statement was false.

The import of his evidence revealed serious allegations regarding the methods of interrogation resorted to by the members of the team of detectives investigating the murder.

H In his statement to the magistrate, he was obliged to name friends whom the police maintained must have assisted him. Three people were named by him. They were arrested but after investigation by the police they were released.

According to the first appellant, some two weeks later the said Shuffles I approached him and enquired of him whether he knew the second and third appellants. He replied in the negative, reiterating that he did not kill his mother.

Once more he was taken to the bushes in the veld by the investigating team. The said team threatened him again to administer electric shocks if he did not go and point out to them where the second and third appellants J lived.

Friedman ACJ

A After cross-examination he stated that what made him admit the contents of his statement relating to his involvement was the pain he was experiencing.

In consequence of the shocks that he received he was not able to walk normally, and demonstrated to the Court the manner in which he walked, B namely with his legs wide apart. He testified that when he went to the magistrate on 16 July to make his statement he still walked in the manner to which he testified.

In cross-examination he admitted that the police did not tell him what to say to the magistrate. He was at a loss to explain where he obtained certain details such as, that the windows and the doors of the house were C broken, unless he...