S v Machaba and Another

• Jurisdiction: South Africa
• Court: Supreme Court of Appeal
• Judge: Mpati P, Majiedt JA and Schoeman AJA
• Judgment Date: 08 April 2015
• Citation: 2016 (1) SACR 1 (SCA)
• Hearing Date: 16 March 2015
• Docket Number: 20401/2014 [2015] ZASCA 60
• Counsel: F van As for the first appellant, instructed by Legal Aid South Africa, Pretoria. L Augustyn for the second appellant, instructed by Justice Centre, Bloemfontein. P Vorster for the state.

Schoeman AJA (Mpati P and Majiedt JA concurring):

[1] The two appellants were accused one and three, respectively, in the High Court where they, and a co-accused, were convicted of J murder and robbery with aggravating circumstances and sentenced on

Schoeman AJA (Mpati P and Majiedt JA concurring)

15 December 2006. The erstwhile second accused has passed away in A the interim. All three accused were sentenced to life imprisonment on the murder charge and 15 years' imprisonment in respect of the robbery charge. With leave of the court below the appellants appeal to this court against their convictions and the sentences imposed.

The record B

[2] It is common cause that the record is not complete as the recording of the last week of the proceedings has not been fully transcribed. The recording can now not be traced. Attempts to reconstruct those portions of the record were unsuccessful. The record does not deal with the evidence relating to a trial-within-a-trial in respect of the second accused C (who is not an appellant), the evidence relating to the sentencing proceedings and part of the judgment on the merits.

[3] It was argued on behalf of the appellants that due to the incomplete record, the appeal in respect of the conviction cannot properly be adjudicated and therefore the convictions and sentences must be set D aside.

[4] In S v Chabedi [1] Brand JA said the following regarding the record on appeal:

'On appeal, the record of the proceedings in the trial court is of cardinal E importance. After all, that record forms the whole basis of the rehearing by the Court of appeal. If the record is inadequate for a proper consideration of the appeal, it will, as a rule, lead to the conviction and sentence being set aside. However, the requirement is that the record must be adequate for proper consideration of the appeal; not that it must be a perfect recordal of everything that was said at the trial. As has been pointed out in previous cases, records of proceedings are often still F kept by hand, in which event a verbatim record is impossible (see, eg, S v Collier 1976 (2) SA 378 (C) at 379A – D and S v S 1995 (2) SACR 420 (T) at 423b – f).

The question whether defects in a record are so serious that a proper consideration of the appeal is not possible, cannot be answered in the abstract. It depends, inter alia, on the nature of the defects in the G particular record and on the nature of the issues to be decided on appeal.'

[5] As will become clearer later in this judgment, I am of the view that the adjudication of this appeal on the record as it stands will not prejudice either of the appellants. The appellants' convictions and H sentences can therefore not be set aside merely on the basis of the record being incomplete.

The administration of the oath in terms of s 162 of the Criminal Procedure Act 51 of 1977 I

[6] The issue pertaining to the proper administration of the oath was not raised by counsel for the appellants during the trial or during the application for leave to appeal, nor was it mentioned in the heads of J

Schoeman AJA (Mpati P and Majiedt JA concurring)

A argument. At the eleventh hour supplementary heads of argument were filed, on the morning of the appeal, raising alleged non-compliance with s 162 of the Criminal Procedure Act 51 of 1977 (the CPA).

[7] Section 162 of the CPA provides:

B '(1) Subject to the provisions of sections 163 and 164, no person shall be examined as a witness in criminal proceedings unless he is under oath, which shall be administered by the presiding judicial officer or, in the case of a superior court, by the presiding judge or the registrar of the court, and which shall be in the following form:

"I swear that the evidence that I shall give, shall be the truth, C the whole truth and nothing but the truth, so help me God.

(2) If any person to whom the oath is administered wishes to take the oath with uplifted hand, he shall be permitted to do so.'

[8] In light of an unreported decision of the North West Division, Mahikeng, S v Pilane, [2] it was argued on behalf of the first appellant that D the record does not reflect that the witnesses for the state were duly sworn in, in terms of s 162 of the CPA. In Pilane all the witnesses were sworn in by the interpreter and not the presiding magistrate. The record reflects that the magistrate said: 'Let her take the oath'; 'Please administer the oath' and 'Administer the oath please'. The record thereafter reflects the following after the witnesses' names: 'd.u.o.', which probably E is an abbreviation for 'declares under oath'.

[9] It is peremptory in terms of s 162 that all witnesses be sworn in by either the presiding judge or the registrar in the case of a superior court. It was emphasised in S v Matshivha [3] para 10 that:

F 'The reading of s 162(1) makes it clear that, with the exception of certain categories of witness falling under either s 163 or 164, it is peremptory for all witnesses in criminal trials to be examined under oath. And the testimony of a witness, who has not been placed under oath properly, has not made a proper affirmation or has not been properly admonished to speak the truth as provided for in the Act, lacks the status and character of evidence and is inadmissible.' [Footnotes omitted.] G

[10] Matshivha dealt with the failure of a presiding judge properly to ascertain whether young witnesses understood the import of the oath. The judge in that instance also instructed the interpreter to administer H the oath. This conduct was not addressed on appeal. However, due to the peremptory wording of s 162 the requirement that it is the presiding judge, or the registrar of the court, who must administer the oath, cannot be dispensed with.

[11] Counsel for the first appellant relied on the appearance of the I abbreviation '(d.s.s.)' after the names of witnesses, followed by the words '(through interpreter)', as a basis for the argument that the oath was not properly administered. It is accepted that 'd.s.s.' is an abbreviation for

Schoeman AJA (Mpati P and Majiedt JA concurring)

'does solemnly swear' or 'duly sworn states'. There is no indication that A the judge had instructed the interpreter to administer the oath or that the judge, or registrar of the court, did not themselves administer the oath through the interpreter. Significantly, only the abbreviations 'd.s.s.' and 'v.o.e.' (which stands for 'verklaar onder eed') appear after the names of those witnesses who testified in the English and Afrikaans languages, B respectively. In the absence of any clear evidence that the judge left it to the interpreter to administer the oath, no deduction can be made that the oath had not been properly administered. This argument accordingly fails.

Background C

[12] None of the accused testified in the trial. No valid reason was raised as to why the uncontested testimony of the state witnesses should not be accepted, barring the identification of the appellants by Ms Christa Sonto Ndebele. Therefore, the accepted evidence of the events of the evening of the incident and of the subsequent police investigation was D the following.

[13] On 3 May 2002 at 21h00 Mr Cyprian Mthembu (the deceased) and his girlfriend, Ms Ndebele, were walking in a street in Soshanguve. They were accosted by three men, one of whom was armed with a firearm. One of these men grabbed Ms Ndebele's handbag and another pushed E her, whilst the third man pointed a firearm at her and the deceased. Ms Ndebele fled from the scene when a shot was fired into the air and she heard a further shot as she was running away. When she returned to the scene she found that the deceased had a gunshot wound to his chest and that he had passed away. His cellphone was missing and a spent cartridge was found at the scene. F

[14] More than two years later, in May 2004, the investigating officer, Insp Cronje, traced and found the cellphone. This find led to the arrest of the first appellant and the second accused for the commission of these crimes. This in turn led to the arrest of the second appellant in Pretoria. G The second appellant led the police to his home where his firearm was seized. The...