S v Sabisa

• Jurisdiction: South Africa
• Judge: Beck CJ, Goldin JA, Dumbutshena JA
• Judgment Date: 24 June 1993
• Citation: 1993 (2) SACR 525 (TkA)
• Hearing Date: 24 June 1993
• Counsel: MM Matyumza for the first and second appellants P Singh for third appellant DC Botma for the State
• Court: Transkei Appellate Division

Dumbutshena JA:

The three appellants were charged together with Shendern Ngcobo and Daniel Mathebula with three counts: murder in contravention of s 84 of Act 9 of 1983; attempted robbery as defined in s 155(1) of Act 9 of 1983 and as read with ss 31 and 32 of the Act; and possession of J firearms without a licence in

Dumbutshena JA

A contravention of s 2 of Act 75 of 1969 as read with ss 1 and 39 of the Act. They denied the charges but were convicted and sentenced as follows: On count 1 first appellant was sentenced to death and second and third appellants were each sentenced to 25 years' imprisonment. On count 2 each appellant was sentenced to 15 years' imprisonment and on count 3 each B appellant was sentenced to one year's imprisonment. The first appellant now appeals against the sentence of death and all the appellants appeal against conviction and sentences of imprisonment with the leave of the Court a quo.

On 21 November 1989 the old-age pensioners of Tsomo were waiting to receive their pension money. A pension vehicle driven by third appellant was on its way to Tsomo. It was carrying a trunk containing R119 720. C There were, besides the driver, four passengers in the vehicle. The deceased, Vumile Qonqo, a police officer, was sitting in the front passenger seat. In between him and third appellant was the trunk. At the rear seat were Signoria Kwephe, Nobulele Mbunjana and Shepherd Tembelani Zikiza, another police officer. The police officers were armed with G3 rifles.

They travelled for a while, turning on to a gravel road leading to D Ngqwaxu Store and Ncora. Suddenly a man holding a firearm appeared on the road. The vehicle was halted. Two armed men appeared on the left side of the vehicle. Shots were fired. The men ordered the occupants of the vehicle to get out. One of the assailants tried to remove the trunk from the vehicle. Constable Zikiza stopped him. Zikiza was then assaulted with the butt of a firearm. But Zikiza's assailant did not remove the trunk.

E The three assailants fled from the store. Zikiza fired shots at them. The occupants of the vehicle noticed that the deceased had been shot and was bleeding. The left and right front windows of the vehicle were shattered.

The deceased was put in the vehicle in order to take him to the Cofimvaba Hospital. On the way they met Power Xokozela, who was driving a F hearse. They transferred the deceased to the hearse. By then he was already dead. Power Xokozela took the body of the deceased to the hospital.

On 30 November 1989 Dr Mbete conducted a post-mortem examination on the body of the deceased. He found irregular shaped pieces of lead in the body. He formed the opinion that deceased was struck by a bullet which must have struck an object such as a window which splintered the bullet G into different pieces. Pieces of lead caused multiple puncture wounds on the left side of the face and the main vessels in the neck were lacerated. He was of the opinion that death was caused by shock due to severe haemorrhaging.

Mr Matyumza set out in his heads of argument what he called four reservations of questions of law. The first related to the abduction of the accused from South Africa to the Transkei without extradition papers H and thereby allegedly depriving the Court a quo of jurisdiction to try them. Mr Matyumza did not pursue this submission.

The second related to a ruling given by the Court a quo overruling the objection by the defence against allowing the State to cross-examine appellants when testifying on the merits by referring to evidence they adduced in a trial within a trial.

I The third so-called question of law was the alleged non-compliance with the Judges' Rules which, it is submitted, 'were designed to protect accused who make confessions from wantonly incriminating themselves'.

The fourth question of law related to non-compliance with Judges' Rules by the police in that they had not advised the accused of their right to lawyers.

There are no passages in the record showing that the Judge a quo reserved, at the instigation of the defence, any questions of law for the J consideration of the Court

Dumbutshena JA

A of appeal. There was therefore no compliance with s 325(1) of the Criminal Procedure Act, which reads:

'If any question of law arises on the trial in a superior Court of any person for any offence, that Court may, of its own motion or at the request either of the prosecutor or the accused, made within 14 days from the date of the accused's acquittal or sentence, as the case may B be, reserve that question for the consideration of the Court of appeal, and thereupon the first-mentioned Court shall state the question reserved and shall direct that it be specially entered in the record.'

S v Khoza en Andere 1991 (1) SA 793 (A).

I have considered the issues raised by Mr Matyumza on behalf of the two appellants as no more than amplifications of grounds of appeal. I shall C treat them as such. In an appeal such as this it would not serve any purpose to refer back or remit the so-called questions of law to the Court a quo.

I turn to consider the second question of law which Mr Matyumza stated as follows:

'It is respectfully submitted that the learned Judge in the Court a D quo erred and misdirected himself in overruling the defence in its objection against allowing the State to cross-examine appellants on matters as against evidence they adduced in a trial within a trial. Such overruling amounted to an irregularity.'

When Mr Matyumza led first appellant in his evidence-in-chief on the merits he asked questions relating to matters that were canvassed in the trial within a trial. He then asked the first appellant what people he E found in the kombi:

'Question: Yes?

Answer: One of them was Ngcobo. That is accused No 3.

Judge: Was the man with the blood in his face . . . ?

Answer: That is correct.

Question: . . . Yes?

F Answer: The other one was Zachariah.'

During the cross-examination of first appellant Mr Botma, for the respondent, asked him:

'Question: You said that Zachariah was in this kombi, also when you boarded this kombi?

Answer: That is correct, he was also present.

G Question: You didn't mention his name when you gave your evidence in the trial within a trial?'

Mr Matyumza objected to this line of cross-examination on the ground that issues raised in a trial within a trial do not form part of the issues in a trial on the merits. He said Mr Botma could not ask the question he put to first appellant in cross-examination.

H The learned Judge a quo ruled that the question put to the witness by Mr Botma was admissible. Mr Botma continued cross-examining first appellant in the same vein:

'Question: You didn't mention the name of or the presence of Zachariah, in this kombi, when you gave evidence in the trial within a trial. Why not? I

Answer: Because I wasn't asked about Zachariah.'

The question is: Did the learned Judge a quo misdirect himself when he allowed Mr Botma to cross-examine first appellant on a piece of evidence adduced by him during the trial within a trial?

Mr Matyumza led evidence in the main trial on issues that had been canvassed in the trial within a trial. Thereupon Mr Botma, as has been shown above, referred the witness to evidence given by him in the trial J within a trial which was different.

Dumbutshena JA

A It appears that Mr Botma was attacking the credibility of first appellant. It is permissible, where the purpose of cross-examination is to attack credibility, for the State to ask questions to show that the accused is not to be believed. See S v Mafuya and Others (2) 1992 (2) SACR 381 (W) at 382j. I do not see how that kind of questioning can result in an injustice to the first appellant. The Judge overruled the defence objection. It is B not clear to me how the overruling of the objection could amount to an irregularity with a potential of prejudicing appellant's case.

In support of his submission Mr Matyumza relied on what was said in S v De Vries 1989 (1) SA 228 (A). In that case De Vries was cross-examined for a long time on matters that did not have anything to do with voluntariness. The question of voluntariness of De Vries' statement was C briefly touched upon by the State and very little time was spent on it. The prosecutor went on to other matters that had nothing to do with the voluntariness of De Vries' statement. At one stage De Vries' counsel objected to the tenor of the cross-examination because the inquiry at that stage was confined to the admissibility of De Vries' statement. He objected to the prosecutor testing De Vries' version in relation to the merits of the case. The prosecutor contended that when the court came to D decide the question of admissibility it would take account of the credibility of De Vries. The magistrate directed that the cross-examination should continue.

On appeal Nicholas AJA said at 233H-234G:

'It is accordingly essential that the issue of voluntariness should be kept clearly distinct from the issue of guilt. This is achieved by insulating the inquiry into voluntariness in a compartment separate from E the main trial. In England the enquiry into voluntariness is made at 'a trial on the voir dire', or, simply, the voir dire, which is held in the absence of the jury. In South Africa it is made at a so-called 'trial within the trial'. Where therefore the question of admissibility of a confession is clearly raised, an accused person has the right to have that question tried as a separate and distinct issue. At such trial, the accused can go into the witness-box on the issue of voluntariness F without being exposed to general cross-examination on the issue of his guilt. (See R v Dunga 1934 AD 223 at 226.) The prosecution may not, as part of its case on the main issue, lead evidence regarding the testimony given by the defendant at the trial within the...