S v Musingadi and Others

• Jurisdiction: South Africa
• Judge: Farlam JA, Mthiyane JA and Comrie AJA
• Judgment Date: 23 September 2004
• Citation: 2005 (1) SACR 395 (SCA)
• Docket Number: 22/95
• Hearing Date: 31 August 2004
• Counsel: J P Barnard for the appellants. J H C van Heerden for the State.
• Court: Supreme Court of Appeal

Comrie AJA:

[1] In December 1994 the four appellants were convicted by a Circuit Court, comprising Marais J and assessors, sitting at Louis Trichardt, of:

(1)

Murder; and E

(2)

robbery with aggravating circumstances.

A fifth accused, Ms Martha Mahtshemule, was acquitted. The first and second appellants were sentenced to death for the murder and to 12 years' imprisonment each for the robbery. In terms of s 316A of the Criminal Procedure Act 51 of 1977, as it then stood, they enjoyed an automatic right of appeal to this Court, which they exercised. The third and fourth appellants were sentenced to effective terms of F imprisonment of 18 and 20 years each. The trial Court granted them leave to appeal against their convictions only. Now, almost ten years later, the appeal is before this Court. G

[2] Upon our enquiry counsel were unable to furnish a full or complete explanation for this highly regrettable delay. Mr Van Heerden for the State undertook to bring the matter to the attention of the Director of Public Prosecutions, Pretoria, and to institute inquiries, all with a view to avoiding a repetition. It is often said that justice delayed is justice denied. While this may be an overstatement in some contexts, it does underline the need for H reasonable expedition. The present is not a case where leave to appeal was granted late or the appeal itself noted late. In the ordinary course it should have come before this Court eight or more years ago. The unexplained delay is to be deprecated.

[3] The events giving rise to the convictions occurred in early July 1993. By the end of October practically all the evidence upon I which the State eventually sought to rely had been assembled. That was before the interim Constitution (the Constitution of the Republic of South Africa Act 200 of 1993) came into force. The trial itself, however, was heard during the last quarter of 1994, and thus under that Constitution. In J

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S v Makwanyane and Another 1995 (2) SACR 1 (CC) (1995 (3) SA 391; 1995 (6) BCLR 665) the Constitutional Court A declared the death sentence unconstitutional. By a subsequent amendment to the Criminal Procedure Act the death sentence was removed from the statute book (see the Criminal Law Amendment Act 105 of 1997, s 34). Counsel were correctly agreed that in the event of the murder convictions of first and second appellants being sustained, their death sentences must be set aside and replaced by other proper sentences. B (See s 1(10) of Act 105 of 1997.)

[4] Appellants 3 and 4 were both arrested in Randburg on 30 August 1993. They were conveyed to Louis Trichardt where, later that same day, they made statements to magistrates Gericke and Boshoff respectively. The admissibility of these statements was contested on C the ground that they had not been made freely and voluntarily. After a trial within a trial the Court below received the statements in evidence, although at the same time it rejected statements made to magistrates by appellants 1 and 2. All four statements complied with the requirements of s 217(1)(b) of the Criminal Procedure D Act, with the consequence that the onus rested upon the appellants to prove on a balance of probabilities that their statements were not freely and voluntarily made (the so-called reverse onus). The trial Court held that appellants 3 and 4 had not discharged that onus. The reverse onus was subsequently held to be unconstitutional: S v Zuma and E Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401). The declaration of invalidity does not apply to the present matter: See para [44] of the judgment of Kentridge AJ. It should be noted, moreover, that the trial Court also said:

'Dit is onnodig om op die bewyslas te steun. Ons bevind dat die bekentenisse bo redelike twyfel vrywilliglik deur beskuldigdes 3 en 4 gemaak is.' F

[5] The deceased, Mrs Dercksen, was a middle-aged woman who, with her husband, lived on the farm Doornspruit in the Louis Trichardt district. Her parents, Mr and Mrs Du Toit, lived in another house on the same farm. Security around the Du Toits' house was tight: It included barbed-wire fencing and pitbull terriers. Within the same house, in a room called the office, substantial sums of cash were G accumulated from the farm's business transactions and stored in a safe. The Du Toits' domestic worker was the second appellant, Ms Sarah Lambani. In the absence of the Du Toits - they were away at the relevant time - she had the keys to the compound and she was under strict instructions as to who might and might not be H admitted. The key to the safe was held by the deceased.

[6] On 5 July 1993, in her parents' house, the deceased was assaulted and strangled to death. There was also an attempt to poison her by the administration of a noxious mixture containing acid. The safe was opened and cash was taken. As there were no signs of I forced entry, suspicion fell on the second appellant. Within days she, her alleged aunt (accused 5) and the first appellant were arrested. On the day of his arrest the first appellant pointed out certain places to Capt van Staden. After a second trial-within-a-trial, the trial Court admitted the contested evidence J

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of such pointings-out and accompanying declarations. On this occasion the trial Court held that the State had A proved voluntariness beyond reasonable doubt. In the same judgment the trial Court declined to accept evidence of admissions made by accused 5 to another police officer, and of a pointing out by her to him, on the ground that the State had not discharged the last mentioned onus of proof. B

[7] The police trail led to appellants 3 and 4, who were eventually located in Randburg, where they were arrested on 30 August 1993. As I have said they made their statements to magistrates in Louis Trichardt on the same day.

[8] The appellants applied for bail in the magistrate's court. In terms of s 235 of the Criminal Procedure Act the trial Court C received the evidence given by the first appellant at the bail enquiry, but not the evidence given by the other applicants for bail.

[9] At the trial all the appellants, and accused 5, pleaded not guilty. Appellants 1, 3 and 4 (and accused 5) raised alibi defences. The second appellant's defence, announced by her counsel at the plea explanation stage, was that she had been a victim of the robbery, which D had been carried out by men wearing balaclavas over their faces. The State adduced no direct evidence implicating any of the appellants in the commission of the robbery or the murder. At the close of the State case the evidence implicating them indirectly consisted in the main of E the material to which I have already referred, plus the testimony of Ms Janet Majiye who was living with the third appellant as his wife. She gave evidence against appellants 1 and 3 and against accused 5.

[10] The first and second appellants closed their cases without giving evidence or calling witnesses. Appellants 3 and 4 testified and persisted in their alibis. Appellant 4 called his mother in support of F his alibi. Accused 5 testified in her own defence; among other things, her evidence affected appellants 1 and 2.

Admissibility of evidence

[11] It is convenient to deal first with the attacks on the admissibility of evidence advanced by counsel for the appellants, Mr G Barnard. He submitted that the evidence given by the first appellant at his application for bail should not have been received by the trial Court, because it did not appear from the record that the appellant had been 'properly warned' before testifying in support of bail. The evidence in question was to the effect that on the morning of H 5 July 1993 he visited the second appellant, with whom he claimed to have had a relationship, at the farm from about 9h00 am to 10h00 am. This prima facie destroyed his alibi, which was also undermined by the evidence of Ms Majiye, but did not link him directly with the crimes which were probably committed later in the day. At the I bail hearing first appellant was represented by an attorney, Mr Hamman, who elicited this piece of evidence from his client during examination-in-chief. As to this, the prosecutor also put a few questions.

[12] The bail evidence was tendered, and received, by the trial Court in J

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terms of s 235 of the Criminal Procedure Act. It was not received in terms of s 60(11B)(c); that subsection - which A provides for a warning by the judicial officer presiding - was not yet in existence. At the trial counsel for No 1 raised a single objection, namely that the record of the bail proceedings was not properly certificated in terms of s 235. The objection was not upheld. Counsel for other accused successfully objected to their bail evidence on other grounds, but counsel for No 1 B raised no question of unfairness. In the absence of such an objection, there was no enquiry by the trial Court into fairness. See S v Nomzaza 1996 (2) SACR 14 (A); S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) (1999 (4) SA 623; 1999 (7) BCLR 771). It can safely be inferred from attorney Hamman's conduct of the bail application, and from his C evidence at the trial on other issues, that he was an experienced and competent attorney. We have to assume that he advised his client of his rights and about the implications thereof. Prima facie fairness was served. Absent an objection on this score, and a consequent enquiry by the trial Court into the issue thus raised, there is no basis upon which we can conclude by way of conjecture that there D was any unfairness when the appellant testified as he did. That such evidence was later to prove adverse to his alibi does not amount to unfairness. As Kriegler J trenchantly observed in Dlamini's case at [95]:

'That [constitutional] shield...