S v Mthembu

• Jurisdiction: South Africa
• Judge: Cameron JA, Maya JA and Cachalia JA
• Judgment Date: 10 April 2008
• Citation: 2008 (2) SACR 407 (SCA)
• Docket Number: 379/07
• Hearing Date: 19 February 2008
• Counsel: SD Slabbert for the appellant. NG Maphalala for the State.
• Court: Supreme Court of Appeal

Cachalia JA:

[1] This appeal, in the main, concerns the admissibility of evidence, obtained through the use of torture, from an accomplice. The question arises because the chief State witness against the appellant implicated him in several crimes through narrative and real evidence - but disclosed, B when testifying at the trial more than four years later, that he had been beaten and tortured before leading the police to crucial evidence. The point at issue is whether that evidence can be used against the appellant.

[2] The appellant, a former police officer, was convicted in the Verulam regional court (Mrs Pillay) of theft of a Toyota Hilux motor vehicle on 5 January 1998 (count 2), theft of a Toyota Corolla motor vehicle on C 3 February 1998 (count 3) and robbery of a steel box containing R60 000 in cash and also of a further amount of R8 450 from the Maidstone Post Office at Tongaat (counts 4 and 5) on 10 February 1998. For the theft of the two vehicles, taken together, he was sentenced to eight years' imprisonment, and for the robbery to 15 years' D imprisonment - effectively 23 years' imprisonment. [1]

[3] He appealed to the Durban High Court against his convictions and sentence. That court confirmed the convictions but reduced the sentence on counts 2 and 3 to five years' imprisonment and that on counts 4 and 5 to 12 years' imprisonment. The effective sentence was reduced to E 17 years' imprisonment. [2] Leave to appeal was granted to this court.

[4] At the trial, the following witnesses testified for the State: Mr Sudesh Ramseroop, Sergeant Selvan Govender, Mr Luke Krishna, Mr Zamani Mhlongo and Mr Dorasamy Pillay. In addition to testifying himself, the appellant also called Mr Nkosinathi Zondo and Mr Sithembiso Philip F Ngcobo to testify on his behalf. Not all their evidence is relevant for this appeal. The foundation upon which the convictions rest is the evidence of Ramseroop, who was warned as an accomplice in terms of s 204 of the Criminal Procedure Act 51 of 1977.

[5] Ramseroop was 32 years old at the time of these incidents. He had lived in the Emona area of Tongaat all his life and conducted business as G a panel beater from his home. He became acquainted with the appellant, who had left the police service to start a business as a taxi operator. The appellant often brought vehicles to him for panel beating. He testified that towards the end of January 1998 the appellant, accompanied by Ngcobo, brought the Hilux in count 2 to him. The appellant asked him H to repair and spray paint the vehicle. They agreed on a price of R500. Two days later the appellant returned with a Mr DK Mhlongo, who he introduced to Ramseroop as his uncle from Hambanathi. The appellant informed him that Mhlongo wished to buy the vehicle. Two days later they returned to inspect it and the day thereafter they came back to I collect the vehicle in return for payment of the agreed amount.

Cachalia JA

[6] On 5 February 1998 the appellant brought another vehicle to A Ramseroop's home. This was the Corolla in count 3. On this occasion an unknown male accompanied him. Ramseroop noticed that the vehicle's ignition switch had been damaged. The appellant removed the registration plates and placed them in the boot. He also asked Ramseroop to spray paint the vehicle. At the appellant's request Ramseroop parked the B vehicle in his sunken lounge thereby concealing it. A few days later the appellant and his companion returned. He appeared, Ramseroop said, to be in a hurry. The appellant attached the registration plates to the Corolla and drove the vehicle away. He returned later, parked the vehicle in the lounge and again removed the registration plates. In the presence of Ramseroop's wife he also handed Ramseroop R300 in note C denominations of R20. The appellant removed a metal box from the vehicle's boot and handed it to Ramseroop for disposal. After the appellant's departure, Ramseroop inspected the contents of the box and found that it contained paper clips and rubber bands. He decided to keep the box and hid it in the ceiling of his house.

[7] On 19 February 1998, at about midday, Sergeant Govender, who D was stationed at the Tongaat Police Station arrived at Ramseroop's home. He was accompanied by five other police officers from the field unit. They were acting on information concerning a stolen vehicle. (Ramseroop's evidence was that this occurred on 10 February, but he E was probably mistaken in this regard.) Ramseroop was outside his house at the time. Govender testified that he told Ramseroop that he was investigating the whereabouts of a stolen vehicle. In response Ramseroop spontaneously began telling him how the appellant had brought the vehicle to his home. Govender stopped him from completing his story F and requested Ramseroop to first show him the vehicle. Ramseroop obliged and escorted him to his sunken lounge where the vehicle had been parked. After inspecting the vehicle and establishing that it had been stolen, Govender seized it, arrested Ramseroop and took him into custody. The main substance and sequence of this interaction Ramseroop confirmed in his evidence. G

[8] Following Ramseroop's interrogation at the police station he disclosed information regarding the Hilux to the police. As a result of this disclosure, Govender accompanied other members of the field unit and a few detectives to Mhlongo's home at Hambanathi. Ramseroop was present. Mhlongo was not at home. Instead they found his son Zamani, H who directed them to another residence. There they found Mhlongo and the Hilux which, according to the testimony of Dorasamy Pillay, the complainant in count 2, had been taken from him at gunpoint. Mhlongo was arrested and the Hilux seized. The State was able only to prove a case of theft against the appellant as there was no evidence linking him I to the actual robbery of the Hilux.

[9] On 21 February at 7 am, acting on further information from Ramseroop, Govender again accompanied some officers and Ramseroop to the latter's residence. There, Ramseroop removed the hidden metal box from the ceiling and handed it to them. This was the very box that J

Cachalia JA

A had been taken from the post office during the robbery. Ramseroop was released later that day, after making a written statement to the police concerning these events.

[10] To sum up, Ramseroop's evidence implicated the appellant in the thefts of the Hilux and Corolla. His evidence regarding the metal box B linked the appellant to the Maidstone Post Office robbery described below. To the circumstances leading to the discovery of the Hilux and the metal box, which assumed critical importance before us, I will return.

[11] The appellant denied involvement in any of the crimes. Regarding C the Hilux, the appellant testified that he had merely been helping Mhlongo, who had since died, to facilitate a business deal with Ramseroop for the repair of the vehicle. He asserted that Ramseroop had falsely implicated him in the crimes because the police had tortured him.

[12] Mr Luke Krishna's eyewitness testimony regarding the events at the D post office placed the appellant at the scene of the robbery. He had been employed at the post office at the time of the robbery. He attended an identification parade at the police station on 20 May 1998, three and a half months after the incident, where he identified the appellant, from a line-up of 11 persons, as one of two persons who had participated in the robbery. He testified that the appellant entered the post office with one E other person who stood at the door. He himself was behind the counter. The appellant was well spoken and was wearing a blue cap, jacket and pants. The appellant approached him and asked him for five stamps. He then produced a firearm and demanded money, which had been delivered to the post office for the payment of pensions. At this stage the F appellant was facing him. Krishna then went to the back of the post office to fetch the money, which was in a metal box. He returned and handed the box containing the money to the appellant. The appellant asked for more money and Krishna returned with two other boxes, but these were empty. The appellant then pointed his firearm at Krishna's assistant Mr Yugan Reddy, who was also behind the counter, and ordered him to G hand over the money that was in the drawer. Reddy complied by throwing the bundled money at the appellant. The appellant and his accomplice then left with the money. The incident lasted approximately five minutes.

[13] The appellant confirmed that Krishna had identified him at the H identification parade. But he denied that he had been one of the robbers. He claimed that Krishna was able to identify him at the parade only because he had seen him at the police station in the charge-office on an earlier occasion. The learned magistrate rejected this claim, with good reason. The identification parade, however, had several unsatisfactory I features; to mention a few: the appellant was denied the presence of...