S v Melani and Others

• Jurisdiction: South Africa
• Judge: Froneman J
• Court: Eastern Cape Division
• Year: 1996
• Counsel: P Daubermann for the accused at the request of the Court N Henning for the State
• Citation: 1996 (1) SACR 335 (E)

Froneman J:

The three accused have been charged with counts of murder, robbery, theft and the unlawful possession of firearms and ammunition. All the counts relate to events on the farm Melrose in the district of Elliot on 7 July 1992 when the owner of the farm, Mr August Emil Wilhelm Wink ('the deceased') was shot and killed and dispossessed of certain of his property. All the accused pleaded not guilty and although G they did not disclose the nature of their defence when they pleaded it transpired during the course of the trial that each of them relied on an alibi: accused No 1 alleging that he was in Cala, in the then Transkei, at the time of the commission of the alleged H offences and accused Nos 2 and 3 alleging that they were in Cape Town at the time. F

The essential dispute to be resolved in the matter is therefore whether it has been established beyond reasonable doubt that the accused were correctly identified as being at the scene of the crime on that particular day and that they were the I perpetrators of the offences with which they were charged.

Before dealing with the disputed portions of the evidence, reference will be made to the undisputed facts relating to the deceased's death and the events surrounding it.

The deceased ran a shop on the farm. The shop itself formed part of the building in which the deceased lived and entry to the house could be gained directly through a J door from the shop. On the morning of 7 July 1992 the

Froneman J

A deceased's wife left the farm to take one of the employees to a doctor in Barkly East. It was after she had left that the deceased was robbed and killed. He was busy in the shop where he was being assisted by a female employee, Mrs Noliki Agnes Diba ('Mrs Diba'). Two men entered the shop and purchased bread and milk from her. The B deceased was called to give them change from the cash register. One of them also asked for and received 'Disprin'. Then another man entered the shop and purchased milk with a R10 note. Mrs Diba again called the deceased from the storeroom in the shop to obtain change from the cash register. At that stage one of the two men who had earlier entered the shop entered again with a firearm and holding one Mr Memetsi C Klaas ('Klaas') in front of him. The man waiting for his change from the deceased then jumped onto and over the counter. Klaas was knocked to the ground and Mrs Diba ran into the house from the shop attempting to escape, but the back door to the kitchen of the house was locked and she was pulled back by the man she had last D served in the shop. He had a firearm in his possession, pointed it at her and forced her back through the dining room. In the dining room she noticed the deceased and one of the other men who had come into the shop earlier. This person also had a firearm. A shot went off and the deceased fell to the ground. Mrs Diba also fell and was pulled back to the shop where she saw the third male standing at the cash register E with a knife in his hand taking cash from the till. Two further shots were fired at a stage when neither of the two men armed with firearms were in the shop. These men then apparently returned to the shop and together with the other person unsuccessfully attempted to break open a steel cabinet. They then loaded the cabinet onto the deceased's vehicle standing outside and drove away. Klaas and Mrs Diba went to a F neighbouring farm to seek help.

A policeman arrived on the scene at about 9:30 that morning and found the deceased lying near a small gate at the back of the building. He was already dead. Medical evidence established that he had died from a gunshot wound into the neck which lacerated the carotid artery but that he had also sustained stab wounds. One of them G penetrated the lung which in itself could have caused his death.

So much for the undisputed evidence.

The State case against accused No 1 was based on (1) the evidence of the two eyewitnesses Mrs Diba and Klaas who both identified accused No 1 as one of the trio H at the shop; (2) the evidence of his erstwhile customary law wife, Mrs Fetana, who identified him as being at the shop on 6 July 1992, the day before the attack, as well as being in the vicinity of the shop shortly before the incident occurred at the shop on 7 July 1992; and (3) an alleged pointing out by him, and discovery, of certain goods taken from the shop on that day.

I The only evidence identifying accused Nos 2 and 3 as being involved in the attack was that of the witness Klaas. Evidence of alleged pointings out by them were ruled inadmissible during the course of the trial.

Each of the accused also testified in their own defence.

I will deal firstly with the issues relating to the alleged pointings out made by each of the J accused.

Froneman J

A A. The alleged 'pointings out' made by the accused

1. Background

All three accused disputed the admissibility of the proposed evidence relating to their respective pointings out. In respect of each a separate trial-within-a-trial, or what I have called an 'admissibility trial', was held. Accused No 1 did not testify in his B admissibility trial whilst accused Nos 2 and 3 did in theirs. I made an initial ruling declaring the evidence relating to accused No 1's alleged pointing out to be admissible (which has since been reported as S v Melani and Others 1995 (2) SACR 141 (E)) and confirmed this again after hearing argument in respect of accused Nos 2 and 3's C admissibility trials. The reconsideration at that stage was prompted by the fact that since I had given my earlier ruling the first number of Constitutional Court judgments were handed down. At the same time I ruled that evidence relating to the alleged pointing out by accused Nos 2 and 3 was inadmissible and indicated that reasons for these findings would be given in this judgment.

D During argument in the main trial Mr Daubermann once again invited me to reconsider my ruling in respect of accused No 1 in view of the fact that we now had the benefit of hearing accused No 1's evidence, an advantage denied to us in the earlier admissibility trial.

This portion of the judgment therefore deals with the reasons for ruling that the E evidence of accused Nos 2 and 3's pointings out was inadmissible as well as with the reconsideration of the admissibility of the evidence relating to accused No 1's alleged pointing out.

2. The grounds upon which the admissibility of the evidence relating to the alleged pointings out were challenged

F The challenge was twofold in nature. In the first instance the accused alleged that they were assaulted by the police prior to making the alleged pointings out and that accordingly evidence of the pointings out were inadmissible because they were not voluntarily made. The second challenge was based on the provisions of the Constitution Act 200 of 1993, namely that a number of the accused's fundamental G rights as set out in s 25 of the Constitution were breached and that evidence obtained as a result of this breach should be excluded.

3. The proper approach when constitutional issues are raised in a criminal trial

H In Zantsi v Council of State, Ciskei, and Others case No CCT/24/94 [*] Chaskalson P, speaking for a unanimous Constitutional Court, stated the following:

'[2] In the United States of America, and as long ago as 1885, Matthews J said:

I "(N)ever . . . anticipate a question of constitutional law in advance of the necessity of deciding it . . . never . . . formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied."

Froneman J

A This rule, though not absolute, has ordinarily been followed by Courts in the United States of America since then. Although the United States jurisprudence is influenced by the "case" and "controversy" requirement of art III of the US Constitution, the rule stated by Matthews J is a salutary rule which has been followed in other countries.

[3] It is also consistent with the requirements of s 102 of our Constitution and the B decision of this Court in S v Mhlungu and Others where Kentridge AJ said:

"I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed."

C [4] The same principle underlies the provisions of s 102(5), which require appeals from a Provincial or Local Division of the Supreme Court to be dealt with first by the Appellate Division and, where possible, to be disposed of by that Court without the constitutional issue having to be addressed. It is only D where it is necessary for the purpose of disposing of the appeal, or where it is in the interest of justice to do so, that the constitutional issue should be dealt with first by this Court. It will only be necessary for this to be done where the appeal cannot be disposed of without the constitutional issue being decided; and it will only be in the interest of justice for a constitutional issue to be decided first, where there are compelling reasons that this should be done.

E [5] This rule allows the law to develop incrementally. In view of the far-reaching implications attaching to constitutional decisions, it is a rule which should ordinarily be adhered to by this and all other South African courts before whom constitutional issues are raised.'

F It would therefore seem proper to approach the issue raised in the respective admissibility trials on the following basis, viz (1) to determine the facts or basis upon which the matter is to be resolved; (2) then to determine what the common-law position is (not influenced by consti-tutional considerations) and (3) if the matter can be decided in favour of the accused on this common-law basis, to do so without having G regard to the provisions of the Constitution (cf also s 33(3) of the...