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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

PARTIES:

MBULELO DANSTER APPELLANT

and

THE STATE RESPONDENT

• Case Number: CA392/2005

• High Court: EASTERN CAPE DIVISION

DATE OF HEARING: 29/10/07 and 2/11/07

DATE DELIVERED: 6/12/07

JUDGE(S): PLASKET J, FRONEMAN J, LEACH J

LEGAL REPRESENTATIVES –

Appearances:

• for the Appellant(s): Ms N.E. Gcingca

• for the Respondent(s): Mr L. Ngodwana

Instructing attorneys:

• Appellant(s): Grahamstown Justice Centre

• Respondent(s): Director of Public Prosecutions, Grahamstown

CASE INFORMATION –

• Nature of Proceedings: Appeal

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: CA392/2005

DATES HEARD: 29/10/07 and 2/11/07

DATE DELIVERED: 6/12/07 REPORTABLE

In the matter between:

MBULELO DANSTER APPELLANT

and

THE STATE RESPONDENT

______________________________________________________________

In an appeal against a conviction for murder and the illegal possession of a firearm, it was held that the trial court’s rejection of the evidence of a State witness solely on the basis of discrepancies between his evidence and the statement he made to the police was a misdirection: the statement had been taken by an Afrikaans speaking policeman from an isiXhosa speaking witness in a mixture of English and isiXhosa without the aid of an interpreter; the discrepancies were, generally speaking, not material and the evidence of the witness was, in any event, more favourable to the appellant than what was contained in his statement. As a result, the discrepancies did not significantly affect the credibility of the witness. Because of the trial court’s misdirection of rejecting the evidence of the witness in its entirety, the court on appeal was free to determine the issues of fact as best it could in the circumstances.

The second issue was whether the evidence of the recovery of the firearm used to murder the deceased was admissible. It was held by Plasket J, Leach J concurring in a separate judgment, that nothing that was said by the appellant amounted to a confession to either murder or the unlawful possession of a firearm. At most, he admitted knowledge of the whereabouts of the firearm. As the admission was voluntarily made, it was admissible against the appellant. It was held by Froneman J that the pointing out was part of an inadmissible confession but, despite this, was admissible in terms of s 35(5) of the Constitution. This conclusion was concurred in, in the alternative, by Leach J.

On the basis of the evidence of the witness referred to above, together with the evidence of the other State witnesses, it was held that the appellant had been properly convicted, albeit that the court of appeal’s reasons were different to those of the trial court.

As to sentence, it was held that the trial court had misdirected itself in imposing a sentence of life imprisonment for the murder and 15 years imprisonment for the unlawful possession of the firearm on the assumption that these were the applicable prescribed sentences in the absence of substantial and compelling circumstances. The murder conviction was not one that, in terms of s 51(1)(a) of the Criminal Law Amendment Act 105 of 1997, qualified for a life sentence and the indictment drew the appellant’s notice to sentencing provisions in the Firearms Control Act 60 of 2000 that prescribed a maximum sentence of 15 years imprisonment for the unlawful possession of a firearm. It was thus unfair to impose a minimum sentence of 15 years imprisonment on the appellant in terms of s 51(2)(a) of the Criminal Law Amendment Act. Such a sentence was, in any event, disproportionate to the offence and induced a sense of shock.

The sentence of life imprisonment, in respect of count 1, was replaced with a sentence of 18 years imprisonment, and the sentence of 15 years imprisonment, in respect of count 2, was replaced with a sentence of two years imprisonment, half of which was to run concurrently with the sentence in respect of count 1.

JUDGMENT

PLASKET, J:

[1] In the early hours of 31 July 2003, in Caleb Street, Fort Beaufort, one Mbuzo Ngavu, a 20 year old man, was shot to death. A fragment of the bullet that killed him was found on the scene, as was a cartridge case. A .22 calibre Astra model 4000 pistol was recovered by the police on 19 August 2003 (in circumstances that I shall detail below) and was linked ballistically to the cartridge case found on the murder scene.

[2] The appellant was charged with the murder of Ngavu and with the unlawful possession of the firearm with which Ngavu was murdered. He pleaded not guilty to both counts but, in his trial, he was convicted as charged. He was sentenced to life imprisonment in respect of the murder and 15 years imprisonment in respect of the unlawful possession of the firearm. He appeals against both conviction and sentence.

[A] THE CONVICTION

(1) The Evidence Concerning the Murder

[3] On the evening of 30 July 2003, the appellant and an acquaintance, one Andile Ngqoba, were in each other’s company in Fort Beaufort. They were at a tavern in Fort Beaufort.

[4] At the tavern, they joined two men, Nika and Mantyi, the latter being one of Ngqoba’s teachers. They drank with them until the tavern closed at about midnight. They then went to a second tavern where they bought meat which they took to Nika’s house. There they consumed the meat and more liquor. A while later, Ngqoba and the appellant left Nika’s house to go home.

[5] These facts are common cause. What happened once Ngqoba and the appellant left Nika’s house is in dispute.

[6] According to Ngqoba he was walking in front of the appellant when they left Nika’s house. They had to traverse the deceased’s yard. Ngqoba saw the deceased in the yard on his way to his room and walked past him and out of the yard. The appellant called to Ngqoba to wait. Ngqoba stopped to relieve himself and while doing so, he heard a gunshot. He re-entered the deceased’s yard and went to his room. When he entered the room he saw the appellant holding a gun in one hand and cradling the deceased in the other before placing him on the bed. Ngqoba noticed that the deceased was bleeding from a wound in his head. He was still alive but was breathing with difficulty.

[7] When he asked the appellant why he had shot the deceased, the appellant said he had done so because the deceased and others had stabbed and killed a relative of the appellant’s named Mandla and had dumped his body at the railway line. After this, they left the deceased’s room, leaving him lying on the bed. The appellant went to the next room and kicked on its door. He said that he was looking for the older brother of the deceased. After kicking the door twice, and not managing to kick it open, the appellant left, along with Ngqoba.

[8] Ngqoba said that when he wanted to leave the appellant to go home, the appellant pointed the firearm at him and forced him to go with the appellant to the home of the appellant’s uncle, who was Mandla’s father. The appellant wanted to tell his uncle that he had managed to kill one of the people who had killed Mandla. The uncle was not at home, but a brother of Mandla, one Lazola Fosi, was. The appellant decided to go to the Tower Hospital where the uncle worked. After he left, Ngqoba, who had stayed behind with Fosi, left and went home, arriving there between 05h00 and 06h00 .

[9] Later that morning, on his way to school, he saw the appellant who told him that he intended going to Adelaide to hide the firearm – which Ngqoba saw tucked into the appellant’s waistband – at his girlfriend’s house. Later that day, he saw the appellant again. The appellant confirmed to him that he had returned from Adelaide having hidden the firearm at his girlfriend’s house.

[10] On 19 August 2003, Ngqoba was arrested at the home of his aunt. He was found in possession of a firearm but it was not in working order. It could not have been the murder weapon because it was a revolver, unlike the murder weapon which was a pistol.

[11] Ngqoba was questioned about the death of the deceased. When he was asked whether his revolver was the murder weapon, he said that it was not. When he was asked where the murder weapon was, he said that the appellant had told him that he had taken it to Adelaide. He was taken to the offices of the investigation team. The appellant was there already. Ngqoba told the police that the appellant had shot the deceased and that the firearm ‘is at Adelaide because Mbulelo [the appellant] told me it was at his girlfriend’. The appellant confirmed this.

[12] After this, both Ngqoba and the appellant were driven by the police to Adelaide, although they travelled in separate vehicles. It would appear that the appellant directed the police to his girlfriend and the firearm was recovered in the circumstances that I will outline below.

[13] The appellant testified that when he and Ngqoba left Nika’s house, Ngqoba walked in front of him. Ngqoba stopped at the gate to the deceased’s yard and told the appellant to wait for him as he wanted to go and look for his girlfriend. Ngqoba returned about 20 minutes later. He was carrying a firearm and he had blood on his hands.

[14] The appellant asked Ngqoba about the blood on his hands and where he had obtained the firearm. Ngqoba said that ‘he’s coming from there where he shot the other youngster who killed Mandla’. The appellant described Mandla as his ‘cousin brother’ – his cousin, in other words. He said that he thought that Mandla had been involved in a train accident. Nonetheless, he said to Ngqoba that they should go to Mandla’s father to tell him what had happened. (When he was cross-examined on this aspect, he stated that he had made the suggestion because he wanted Ngqoba to ‘go and tell Mandla’s father who these people are who killed Mandla, because Mandla’s father did not know who killed Mandla’.)

[15] When they arrived at the appellant’s uncle’s house, the door was opened by Fosi. When they entered, Ngqoba pointed the firearm at Fosi and told him that ‘if he also has much to say, he is going to shoot him’. He then asked for water and was directed to a tap outside the house. He apparently proceeded to wash the blood off his hands and when he returned to the house, the appellant went outside to urinate. He left without returning to the house and went to a second uncle’s house.

[16] The appellant denied that he saw Ngqoba on his way to school later that day and having told Ngqoba that he had hidden the firearm in Adelaide. Indeed, he said that ‘I never told Andile about a firearm and I left Andile at my uncle’s place and I didn’t meet him again’. He also denied that, after his arrest, he had confirmed to the police that the firearm was in Adelaide. He stated, however, that the police took him to Adelaide and that they asked him to direct them to his girlfriend.

(2) The Recovery of the Firearm

[17] Evidence concerning the recovery of the firearm was given by Sergeant Thembela Mtyobile and Constable Buyisile Tywapi for the State, and the appellant, for the defence.

[18] Mtyobile testified that he had received information that the appellant and Ngqoba had been involved in the murder of the deceased. He first arrested the appellant and, having placed him in the cells, later arrested Ngqoba. He arrested Ngqoba after the appellant had told him that Ngqoba had killed the deceased and that he was in possession of the murder weapon.

[19] As stated by Ngqoba, when he was arrested he was caught in possession of a revolver which, it was later established, was not in working order. Ngqoba denied that this weapon was the murder weapon and told Mtyobile that the firearm that was used was in Adelaide and that the appellant had taken it there. He told Mtyobile that the appellant had shot the deceased. Mtyobile returned to the police station where he booked the appellant out of the cells and confronted him with Ngqoba’s allegations.

[20] As a result of information that the appellant gave Mtyobile, he was taken to Adelaide. He led the police to his girlfriend’s house at 25 Maxamba Street, Adelaide. Mtyobile approached the appellant’s girlfriend but she said she knew nothing of a firearm being in the house. She asked to speak to the appellant.

[21] When she did so, he apologised to her and said that he had come to collect the firearm he had left a few days before and that it was in a lunch box on top of the fridge. This was said in Mtyobile’s presence and hearing. He then entered the house and found the firearm in a lunch box on top of the fridge.

[22] More detail was illicited from Mtyobile when he was cross-examined. For instance, it emerged that they had first been directed by the appellant to 20 Kwakati Street, where his girlfriend was sleeping. It was here that she denied knowledge of the firearm and spoke to the appellant. Although Mtyobile did not say so, it is evident that either the appellant or his girlfriend directed the police to the premises where the firearm was recovered. This was clarified when Tywapi testified. He said that when the appellant spoke to his girlfriend he told her that the firearm was at 25 Maxamba Street and that she should direct the police to that address. Tywapi, whose evidence confirmed that of Mtyobile in all material respects, confirmed that the firearm was recovered at 25 Maxamba Street in a lunch box above the fridge.

[23] In summary, the evidence of the State witnesses concerning the recovery of the firearm amounts to this: (a) the appellant agreed to direct them to his girlfriend in Adelaide; (b) he did so; (c) he spoke to her and told her, in the presence of the police, where the firearm was; (d) the firearm was found precisely where the appellant had said it was.

[24] The appellant admitted that he went to Adelaide with the police on 19 August 2006. All he knew of the purpose of the trip was that the police wanted him to take them to his girlfriend. He denied having told the police anything about a firearm.

[25] When they arrived in Adelaide they visited two places, 20 Kwakati Street and 25 Maxamba Street. He stated that his girlfriend usually stayed at her parents’ house at 25 Maxamba Street and that her grandmother resided at 20 Kwakati Street. He directed the police to 20 Twakati Street where they found his girlfriend. He did not know why the police wanted to speak to her and nor did he ask them. As he never told the police about her, he did not know how the police knew about her.

[26] When the appellant’s girlfriend came to the car that he was in, he said nothing to her and she asked why he was in custody. He remained silent because he did not know why he was there. He said that his girlfriend got into the front car – the police were travelling in two vehicles – and, he assumed, directed the police to 25 Maxamba Street. When they got there, he saw the policemen and his girlfriend alight from the vehicle. He did not say whether he saw them enter the house but he said that he knew nothing of the recovery of the firearm: the police did not inform him that they had recovered a firearm and neither did they show it to him.

[27] When the appellant was cross-examined, he said that he had had no objection to being taken to Adelaide, that he had co-operated fully with the police and that he had directed them to 20 Kwakati Street freely and voluntarily. Finally, when the appellant was re-examined, he said that he conversed with Ngqoba for the first time on 30 July 2006, that he had never taken Ngqoba to meet his girlfriend and that Ngqoba and his girlfriend did not know each other.

[28] Finally, a word concerning the appellant’s allegation that he was assaulted. This was denied by Mtyobile and Tywapi, the two policemen who were alleged to have perpetrated the assault. The assault allegation has no bearing on the recovery of the firearm because it was alleged to have occurred at the offices of the investigating team prior to the appellant being taken to Adelaide, the appellant stated that he had led the police to his girlfriend freely and voluntarily and he denied, in any event, that he had told her in the presence of the police where the firearm was. On his own version, therefore, the alleged assault played no part in the events surrounding the recovery of the firearm.

(3) The Trial Court’s Reasoning

[29] The trial court, after analysing the evidence of the appellant, concluded that it was false beyond reasonable doubt and rejected it. For the reasons stated in the judgment, this conclusion cannot be faulted: from a reading of the record, it is clear that the appellant was, indeed, a poor witness, that he fabricated his version at times, that he was evasive and that his version was shot through with improbabilities. The trial court also placed no reliance on the evidence of Lazola Fosi, the witness who was called by the defence.

[30] The trial court decided in respect of Ngqoba’s evidence that ‘none of what he testified will be relied upon’. The reasoning that led to this conclusion will be dealt with below.

[31] The appellant’s conviction was based exclusively on the remaining evidence. The trial court found that the various police witnesses who testified were all good witnesses whose evidence was to be accepted. The record bears out this finding. In addition, the appellant made certain formal admissions, including that the spent cartridge case and bullet fragment were found at the murder scene and that the firearm in question was ‘the firearm found by the police in Adelaide at No. 25 Maxamba Street on 19 August 2006’.

[32] The final piece of evidence relied on was the affidavit, made in terms of s 212 of the Criminal Procedure Act 51 of 1977, of Inspector GS Olivier. This evidence established beyond reasonable doubt that the weapon that was recovered from the 25 Maxamba Street was the weapon that was used to kill the deceased.

[33] From this evidence, the trial court inferred that the appellant ‘had taken the firearm to Adelaide for storing’, as he was the only person involved who knew his girlfriend and it was he who directed the police to her. Flowing from this, the court concluded that the State had established beyond reasonable doubt that the appellant was guilty of the unlawful possession of the firearm:

‘In this case it is clear that the accused still intended to have control over the firearm which he took to Adelaide. It is logical that in order to have taken it there he must … at that stage have [had] it in his possession. It is clear that he always had intention to control it even while it was in Adelaide. Having been in possession of that firearm in either [of the] ways that I have referred to it was for the accused to provide a lawful reason or licence for the possession of that firearm. Had he done so he might have been acquitted or probably would have been acquitted of that charge. He has, however, not done so.’

[34] In respect of the murder charge, the trial court found that the only reasonable inference to draw from the fact that the firearm was recovered in the way in which it was, and its link to the murder, was that the appellant had murdered the deceased. It held in this regard:

‘In this case the accused was arrested 18 days or so after the murder. He has chosen not to explain where the firearm was, whether he at that time had it in his possession, or who might have had it in possession at the relevant time. The absence of evidence to found a reasonably acceptable explanation to explain his innocence removes all other possibilities from the range of reasonable possibilities. The accepted facts in this case and the accused’s failure to explain the use of the firearm at that stage places him in an invidious position. The cumulative effect of all of those factors forms a network that is so inherent in texture that it is difficult for the accused to penetrate that network.

From the evidence placed before us, there is no other reasonable inference that can be drawn other than that the accused is responsible for killing the deceased. All the acceptable facts taken together fortify that finding. The State has therefore discharged the onus resting upon it and proved beyond a reasonable doubt that the accused is guilty on count 1 as well.’

[35] I am of the view that the trial court’s reasoning was flawed. Once it decided to reject the evidence of Ngqoba in its entirety, it was no longer possible to draw the link between the recovery of the firearm and the appellant having used it to murder the deceased. The conclusion to which the trial court came -- that the mere fact of the appellant’s possession of the murder weapon 18 days after the murder, meant that the appellant was the murderer -- is not the only reasonable inference to draw. Another reasonable inference would be that the appellant acquired the firearm after the murder, and yet another is that he hid it to protect another person who used it to murder the deceased. The absence of a reasonable explanation cannot eliminate these alternative inferences because, if that was the case, it would amount to placing an onus on the appellant to prove his innocence.

(4) The Issues on Appeal

[36] Two issues arise for consideration in the appeal against conviction. The first is whether the trial court was correct in rejecting the evidence of Ngqoba, in its totality, on the basis on which it did. If it was, then the appeal against conviction might succeed because, as I have indicated above, the remaining evidence is insufficient to prove the State’s case beyond reasonable doubt. The second issue is whether the evidence concerning the recovery of the firearm that emanated from the appellant is admissible. This issue will, self-evidently, have a significant bearing on both counts.

(i) The First Issue: Ngqoba’s Evidence

[37] Ngqoba’s evidence was rejected entirely by the trial court for one reason only: it held that because of discrepancies between his evidence and what was contained in a statement that he made to the police, ‘his evidence cannot be trusted’ and so ‘nothing of his evidence can be regarded as acceptable’.

[38] The problem of discrepancies between statements made to the police and the evidence given in court by witnesses is well-known, and has been commented on by the courts on many occasions. In Shabalala v Attorney-General, Transvaal and another; Gumede and others v Attorney-General, Transvaal,¹ Cloete J alluded to the problems created when often inexperienced policemen take statements in a language that is not their home language from witnesses who speak different languages to them: it would, in these circumstances, be expecting a great deal if one thought that the result would be accurate.

[39] Perhaps more fundamentally, in S v Bruiners en ‘n ander,² Horn AJ considered the purpose of a statement made to the police during the course of an investigation. He held:³

‘Die doel van ‘n polisieverklaring is om besonderhede van ‘n misdaad te bekom sodat daar besluit kan word of die beskuldigde vervolg moet word. Die getuieverklaring is nie om die getuie se getuienis in die hof vooruit te loop nie. Dit is vergesog om van ‘n getuie te verwag om in sy getuieverklaring reeds presies dieselfde weergawe te verskaf as wat hy in die ope hof gaan getuig. … Getuieverklarings bly nuttige ammunisie vir kruisondervraging, maar dan moet dit in konteks oorweeg word en sal die aard en omvang van die afwykings in geheel in ag geneem moet word alvorens dit gesê kan word dat ‘n getuie se getuienis as gevolg van sulke afwykings verwerp moet word.’

[40] The correct approach to dealing with discrepancies between the evidence of a witness and what is contained in his or her statement to the police was set out by Olivier JA in S v Mafaladiso en andere⁴ in the following terms:⁵

‘Die blote feit dat daar self-weersprekings voor hande is, moet deur ‘n hof met omsigtigheid benader word. Eerstens moet nougeset vasgestel word wat die getuie werklik bedoel het om op elke geleentheid te sê, ten einde te bepaal of daar ‘n weerspreking voor hande is en wat die presiese omvang daarvan is. In hierdie verband moet die feite-beoordeelaar in ag neem dat ‘n vorige verklaring nie by wyse van kruisverhoor afgeneem is nie, dat daar taal- en kultuurverskille tussen die getuie en die opskrifsteller mag wees wat die korrektheid van wat presies bedoel is in die weg staan, en dat die verklaarder selde of ooit deur ‘n polisiebeampte gevra word om in detail sy of haar verklaring te verduidelik. …

Tweedens moet dit steeds voor die oë gehou word dat nie elke fout deur ‘n getuie en nie elke weerspreking of afwyking die getuie se geloofwaardigheid aantas nie … . Nie-wesenlike afwykings is nie noodwendig relevant nie … .

Derdens moet die weersprekende weergawes steeds oorweeg en ge-evalueer word op ‘n holistiese basis. Die omstandighede waaronder die weergawes gemaak is, die bewese redes vir die weersprekings, die werklike effek van die weersprekings ten aansien van die getuie se betroubaarheid of geloofwaardigheid, en die vraag of die getuie voldoende geleentheid gehad het om die weersprekings te verduidelik – en die kwaliteit van dié verduidelikings – en die samehang van die weersprekings met die res van die getuie se getuienis moet oa in ag geneem en opgeweeg word.’

[41] Reverting to the facts of the present case, the investigating officer, Inspector Neil Adonis, who was recalled at the request of the defence, testified about the manner in which he took Ngqoba’s statement. The statement was recorded in English, Adonis is Afrikaans speaking and Ngqoba is isiXhosa speaking. When Ngqoba was responding to Adonis, he was, said Adonis, ‘speaking Xhosa and English mingled’ and that during the course of the interview, Afrikaans, English and isiXhosa were spoken. Although Adonis stated that an isiXhosa speaking colleague was present as an interpreter, this must be seen in context: he also said that this colleague’s role was limited to assisting him ‘with some places where I was unsure’. He conceded readily that where three languages are used in an interview, misunderstandings may occur.

[42] The defects in the taking of the statement are patent and are of such a nature that one would be surprised if discrepancies between the contents of Ngqoba’s statement and his evidence had not arisen. Secondly, most of the discrepancies are not material, being matters of detail, and therefore do not impact significantly on Ngqoba’s credibility. It is noteworthy that when he was confronted with the contents of his statement, Ngqoba did not try to defend what he had said in the statement but conceded readily that the contents of the statement was incorrect. I note in passing that his evidence is, if anything, more beneficial to the appellant than the statement is. When he was cross-examined on how the statement was taken, Ngqoba’s evidence mirrored that given later by Adonis. That explains fully why discrepancies of detail crept into the statement. All of this is not to wish away the discrepancies. They must be taken into account when Ngqoba’s evidence is evaluated but they must be accorded no more weight than they deserve. In my view, when the nature of the discrepancies, the explanation for how they arose and the rest of Ngqoba’s evidence is viewed holistically, it cannot be said that the discrepancies between Ngqoba’s evidence and his statement are such that his credibility is significantly affected. There is, in other words, no basis for rejecting his evidence out of hand, and the trial court ought not to have done so.

[43] Once it is accepted that weight ought to have been accorded to the evidence of Ngqoba, the absence of a finding by the trial court concerning his credibility arises. In S v Frazenburg and others⁶ Leach J, after surveying the authorities on the issue, summarised how a court of appeal is to deal with the problem thus:⁷

‘To summarise, as the trial court made no findings as to the credibility of the witnesses who testified, this Court, on appeal, (a) has to do its best on the material on record; (b) cannot proceed on the assumption that there was no misdirection or irregularity in the process of reaching the decision that was reached by the Court a quo; (c) cannot assume that the Court a quo had cogent reasons for seemingly accepting the witnesses who implicated the appellants; and (d) should have regard only to the question of the onus of proof once all the relevant evidence has been examined to see whether there is any doubt as to which version is acceptable.’

[44] This dictum must be seen in the context of a long line of authority concerning the nature of an appeal and the powers of courts of appeal to determine factual issues. In R v Abel⁸ Centlivres JA stated that while an appeal was ‘in the nature of a re-hearing’ it was a ‘re-hearing upon special lines’ because ‘a court of appeal has not the advantage of judging of the credibility of witnesses by observing their deportment in the witness-box’.⁹ He proceeded to state, however, that the reluctance of a court of appeal to make findings as to credibility should not be elevated into a hard and fast rule because a ‘Court of Appeal may in certain circumstances express its own views on the credibility of witnesses on reading the written record of their evidence and without re-hearing them.‘¹⁰

[45] In S v Tusini and another,¹¹ De Beer AJA held, on the authority of R v Dlumayo and another,¹² that where the trial court has committed a misdirection, the court of appeal is free to disregard the findings of fact that have been made by the trial court and to come to its own conclusions, but that in so doing it must be alive to the limitations inherent in the process of appeal.¹³

[46] The rejection of the evidence of Ngqoba on the basis stated by the trial court is a misdirection that allows this court the freedom to come to its own conclusions, doing the best that we can on the material on record. Even though this court, on appeal, is at something of a disadvantage in that we have not had the benefit of seeing and hearing Ngqoba testify, it is apparent from a reading of his evidence that he was a far better witness than he was given credit for by the trial court. His evidence was consistent, it withstood cross-examination, he was forthright, the version of events about which he testified is in step with the probabilities and his evidence is supported in significant respects by the evidence of Mtyobile, Tywapi and Olivier. As against that, the trial court correctly found that the appellant was a poor witness and that his version was false beyond reasonable doubt. It was certainly correct in that regard.

[47] Sight must not be lost of the fact that for purposes of the circumstances surrounding the killing of the deceased, Ngqoba was a single witness and so his evidence must be approached with caution. In my view, however, the cautionary rule is satisfied because the evidence of Ngqoba was satisfactory in every material respect and it was corroborated by the evidence of Mtyobile, Tywapi and Olivier, particularly in relation to the recovery of the firearm that was used to kill the deceased.

(b) The Second Issue: The Recovery of the Firearm

[48] I turn now to whether the evidence concerning the recovery of the firearm is admissible. This turns on whether, during the course of the recovery of the firearm, the appellant can be said to have made any admission that amounted to a confession. If he did do so, that admission will be inadmissible because it did not comply with the provisions of s 217 of the Criminal Procedure Act 51 of 1977, in that it was not reduced to writing and the policemen who were present were not commissioned officers and therefore not justices of the peace for purposes of s 217.

[49] Although the term ‘confession’ has not been defined in the Act, it has been defined by the courts. It is clear from the cases that a narrow definition has been given to the term: in R v Becker,¹⁴ De Villiers ACJ held that ‘by a confession is meant an unequivocal acknowledgement of guilt’ – what he described (later on the same page) as ‘the equivalent of a plea of guilty before a court of law’. He proceeded to say, however, that the ‘admission by an accused of facts which, when carefully scrutinised and may be laboriously pieced together, may lead to the inference of guilt on the part of the accused, however consonant that may be with the meaning of the term “confession” in the abstract, is not a confession within the meaning of the Act’.¹⁵

[50] This definition has been applied consistently in our law: Du Toit, De Jager, Paizes, Skeen and Van Der Merwe say that the dictum of De Villiers ACJ is ‘regarded as being of unquestionable authority, and the tendency is to treat it as being almost a “self-contained statutory definition”’. They submit in reliance on this definition that a confession is ‘an extra-curial admission of all the elements of the offence charged’.¹⁶

[51] It is my view that, when the appellant was taken to Adelaide, he never made any statement that amounted to a confession to murder. The remaining issue is whether he confessed to the unlawful possession of the firearm. Section 3 of the Firearms Control Act 60 of 2000 provides that ‘[n]o person may possess a firearm unless he or she holds a licence, permit or authorisation issued in terms of this Act for that firearm’ and s 120(1) provides that a person ‘is guilty of an offence if he or she contravenes or fails to comply with any … (a) provision of this Act’. The elements of the offence of which the appellant was charged are thus that he ‘(i) unlawfully (ii) possessed (iii) a firearm (iv) mens rea’.¹⁷

[52] On the State’s version which, for the reasons advanced above, is to be preferred, all that the appellant did was to lead the police to his girlfriend and then tell her that the firearm was in a lunch box on top of the fridge in the house at 25 Maxamba Street. That amounts to no more than an admission that he knew where the firearm was and does not amount to an admission that he possessed it or that he had the necessary mens rea to do so. I am accordingly of the view that, if this admission by the appellant meets the requirements for admissibility set out in s 219A of the Criminal Procedure Act, it will be admissible.

[53] Section 219A of the Act provides that evidence of an extra-curial admission made by a person in relation to the commission of an offence ‘shall, if such admission does not constitute a confession of that offence and is proved to have been voluntarily made by that person, be admissible in evidence against him at criminal proceedings relating to that offence’.

[54] I have already found that the admission as to the whereabouts of the firearm was not a confession of the offence of unlawful possession of a firearm. I turn now to the voluntariness of the admission.

[55] Once again, the State’s version is to be accepted and the appellant’s version -- that apart from leading the police to his girlfriend, he did not speak to her and did not even know that the firearm had been found -- is to be rejected as being false beyond reasonable doubt. These are findings of the trial court that I support for the reasons set out in the trial court’s judgment. On the State’s version, the appellant cooperated throughout in the trip to Adelaide. He led the police to his girlfriend and when she said that she knew nothing of a firearm she spoke to the appellant who told her where the firearm was. On that version, the admission that the appellant knew where the firearm was hidden, was made voluntarily and is admissible against him.

(5) Conclusion on Conviction

[56] The evidence of Mtyobile, Tywapi and Olivier establish that (a) the firearm recovered by the police at 25 Maxamba Street, Adelaide, was the firearm that was used to murder the deceased and that (b) the firearm was recovered as a result of information as to its whereabouts that the appellant gave to his girlfriend in the presence of the police, he having led them to her.

[57] Ngqoba’s evidence, which I accept, fills in the gaps in the evidence of the police witnesses mentioned above. It establishes that (a) the appellant shot the deceased with the firearm that was subsequently recovered in Adelaide; (b) a few hours after the murder, the appellant told Ngqoba that he intended to take the firearm to his girlfriend in Adelaide for safe-keeping; (c) he later told Ngqoba that he had done so; (d) Ngqoba did not know the identity of the appellant’s girlfriend or where she lived and so could not have led the police to her.

[58] Once these facts are accepted, as they must be, the State has, in my view, succeeded in proving the appellant’s guilt on count 1 beyond reasonable doubt. His guilt on count 2 depends on whether the only reasonable inference to be drawn from his knowledge of the whereabouts of the firearm and the fact that he took it to where it was found is that he intended to possess it, despite not being in physical custody of it. I am of the view that this is indeed the only reasonable inference to be drawn and that, consequently the State also succeeded in proving the appellant’s guilt on count 2 beyond reasonable doubt. The appeal against conviction must accordingly fail.

[B] SENTENCE

[59] The trial court imposed a sentence of life imprisonment, in respect of the murder conviction, and 15 years imprisonment, in respect of the conviction of unlawful possession of the firearm.

[60] In imposing sentence in respect of count 1, the trial court assumed that the prescribed minimum sentence was life imprisonment. This is clear from the fact that the trial judge stated in his judgment on sentence, after saying that the appellant had been convicted of offences for which minimum sentences are prescribed, that ‘I can only deviate from such prescribed sentences if there were to be found that there exist substantial and compelling circumstances not to impose those prescribed sentences’, together with his finding that there were, indeed, no substantial and compelling circumstances present, and the imposition of a sentence of life imprisonment.

[61] In terms of s 51(1)(a) of the Criminal Law Amendment Act 105 of 1997, read with Part I of Schedule 2, life imprisonment is the prescribed sentence for murder (in the absence of substantial and compelling circumstances) if: the murder was ‘planned or premeditated’; the victim was either a policeman performing his or her duties or a witness or potential witness in proceedings involving an offence referred to in Schedule 1 of the Criminal Procedure Act; the victim’s death was caused by the accused ‘in committing or attempting to commit or after having committed or attempted to commit’ rape or robbery with aggravating circumstances; or the murder was committed ‘by a person, group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy’. None of these circumstances were alleged by the State or proved by it. That being so, the minimum sentence for murder referred to in s 51(2)(a) of the Act, read with Part II of Schedule 2, applies: the minimum sentence for a first offender like the appellant for ‘[m]urder in circumstances other than those referred to in Part I’ and in the absence of substantial and compelling circumstances is 15 years imprisonment. The sentence of life imprisonment therefore cannot stand and must be set aside.

[62] The trial court took the view that in the absence of substantial and compelling circumstances, the appellant was to be sentenced to 15 years imprisonment for the unlawful possession of the firearm. This view appears to relate to s 51(2)(a) of the Criminal Law Amendment Act, read with Part II of Schedule 2, which prescribes a minimum sentence of 15 years imprisonment (in the absence of substantial and compelling circumstances) in the event of a conviction of any offence relating to ‘the possession of an automatic or semi-automatic firearm, explosives or armament’. The indictment made no mention of this provision. Instead, it drew the appellant’s attention – as far as sentence was concerned – to s 121 of the Firearms Control Act 60 of 2000 and Schedule 4 of that Act.

[63] Section 121 of the Act provides as follows:

‘Any person convicted of a contravention of or a failure to comply with any section mentioned in Column 1 of Schedule 4, may be sentenced to a fine or to imprisonment for a period not exceeding the period mentioned in Column 2 of that Schedule opposite the number of that section.’

The appropriate provision of Schedule 4 provides for a maximum sentence of 15 years imprisonment for a contravention of s 3 of the Act.

[64] Although the evidence of Olivier is to the effect that the firearm that the appellant possessed was a semi-automatic firearm, the State does not appear to have relied on this fact and, as mentioned above, no notice was given to the appellant that the State intended to rely on s 51(2)(a) of the Criminal Law Amendment Act, read with Part II of Schedule 2. The mere fact that no specific reference to a minimum sentence provision is contained in the indictment, whilst desirable if the State intends to rely thereon, is not essential unless the omission will have the effect of rendering the trial in question unfair.¹⁸

[65] In this case the omission rendered the trial unfair in this sense: the indictment must have led the appellant to believe that he stood to be sentenced to a maximum of 15 years imprisonment, whereas the trial court approached sentence on the basis that the appellant was to be sentenced to a minimum of 15 years imprisonment unless substantial and compelling circumstances were found to exist. This sentence must therefore be set aside for this reason. It is, in any event, disproportionate to the crime and is for this reason so severe as to induce a sense of shock.

[66] I turn now to determining appropriate sentences for the crimes committed by the appellant. I shall commence by setting out his personal circumstances. He is a first offender. He was 28 years old at the time of the commission of the offences. He almost completed his secondary education, having left school during his standard 10 year. He was unemployed. He is the father of a child, although no details concerning the child are on record.

[67] The appellant had been drinking for a few hours immediately prior to the commission of the murder. The decision to murder the deceased must have been a spur-of-the-moment decision arrived at when, by chance, the appellant saw the deceased in his yard. The motive for the murder appears to have been to avenge the death of the appellant’s cousin who, the appellant believed, the deceased had killed.

[68] As against these factors, it is of course obvious that the crime was a very serious one indeed, aggravated by the fact that the appellant violated the sanctity of the deceased’s home in order to execute him. While I have accepted that the motive for the murder appears to have been revenge, it must be stressed that it is always a very serious matter when a person takes the law into his or her own hands and, as in this case, usurps the function of prosecutor, judge and executioner. This type of conduct is fuelled by the fact that this province, if not the country, is awash with unlawfully possessed firearms, as those of us involved in the adjudication of serious criminal trials and criminal appeals know only too well from our everyday experience. I stress that the offence of unlawfully being in possession of a firearm is also a most serious offence: the facts of this case illustrate why this is so.

[69] It is no exaggeration to say that law-abiding members of society are sick and tired of the sort of vicious and blatant lawlessness that characterised the appellant’s conduct. Society demands protection from people like the appellant and is entitled to that protection from institutions like (but not restricted to) the criminal courts. The minimum sentence prescribed by the Criminal Law Amendment Act for the type of murder committed by the appellant is 15 years imprisonment. I am of the view that, despite the mitigatory factors that I have mentioned, the minimum sentence would not adequately reflect the seriousness of the offence: whatever the motive, the murder of the deceased was a callous and brutal act deserving of severe censure.

[70] In my view a proper balance between the interests of the appellant, the seriousness of the offences he committed and the interests of society will be struck by a sentence of 18 years imprisonment in respect of the murder and two years imprisonment in respect of the unlawful possession of the firearm. I intend ordering a half of the latter sentence to run concurrently with the former sentence.

[C] THE ORDER

[71] For the reasons stated above, the following order is made:

(a) The appeal against conviction is dismissed and the appellant’s convictions are confirmed.

(b) The appeal against sentence succeeds, the sentences imposed by the trial court are set aside and are replaced with:

(i) a sentence of 18 years imprisonment in respect of count 1;

(ii) a sentence of two years imprisonment in respect of count 2, half of which shall run concurrently with the sentence imposed in respect of count 1; and

(iii) the above sentences are ante-dated to 9 September 2004.

____________________

C. PLASKET

JUDGE OF THE HIGH COURT

FRONEMAN, J:

[72] I respectfully agree with the lucid reasoning as well as with the order set out in Plasket J’s judgment, except that I would prefer to deal with the admissibility of the evidence of the recovery of the firearm from the appellant’s girlfriend in Adelaide on a different basis. In my view the appellant’s admission of the whereabouts of the firearm, his directions to the police in getting to his girlfriend’s house in Adelaide, and his pointing out in Adelaide of where the firearm was to be found, all formed part of an inadmissible confession, rather than as an isolated, voluntary (and thus admissible) admission of knowledge of where the firearm was, as found in para [52] of the main judgment.

[73] The finding that it was an admission, rather than a confession, or part of a confession, makes it possible to consider that admission – appellant’s knowledge of the location of the firearm – as further part of the evidence implicating the appellant in the commission of the offences with which he was charge. In this particular case, by the acceptance of Ngqoba’s evidence that appellant also told him where he had taken the firearm, the appellant’s own additional admission does not take the issue much further, but in many cases the admissibility of such an admission may well prove crucial. If, however, the admission of knowledge of the firearm’s whereabouts formed part of an inadmissible confession, then, in my view, it is not admissible as evidence against the appellant under s 218 of the Act and may thus play no role on its own in determining the appellant’s guilt or otherwise.

[74] In R v Duetsimi¹⁹ Schreiner JA warned, in a case involving an alleged pointing out, that ‘it is essential to examine the circumstances in which the statement [of pointing out] was made and everything that was said by the accused on the occasion in question and on occasions associated with the occasion in question, in order to ascertain whether the statement was or was not a confession, and in either event, whether the conditions required for admissibility were present’. The facts in Duetsimi are, to my mind, instructive too. The accused in that case had been charged with housebreaking with intent to rob and robbery. The evidence implicating him consisted of his possession 16 days after the crime of two of the blankets that had been stolen, and by him pointing out the door by which entry had been gained to the shop which had been broken into. The trial judge excluded the evidence of the pointing out of the door, but allowed the evidence of the pointing out of the house. Schreiner JA found both these pointings out to be part of an inadmissible confession to a peace officer,²⁰ resulting in the acquittal of the accused on appeal.

[75] In the present case the appellant initially told the police that Ngqoba shot the deceased and that Ngqoba had the firearm with him. It was only when confronted by the police with Ngqoba’s statement that he, the appellant, was the perpetrator and had hidden the firearm in Adelaide with his girlfriend that the appellant agreed, and took the police to Adelaide, where he also apologised to his girlfriend for what he had done. I find it difficult to find any exculpatory explanation for his about-turn, from blaming Ngqoba and stating that the firearm was in the latter’s possession, to an acknowledgement that it was not in his possession, that he knew where it was and then pointing out the firearm after apologising to his girlfriend. It seems to me that the about-turn and what followed after it all formed part of a confession, partly by words, partly by conduct, that the appellant had killed the deceased or at least took part in some way in his killing and in disposing of the murder weapon.

[76] If that is indeed the case, all parts of that confession are inadmissible for want of being confirmed in writing before a magistrate under s 217(1)(a) of the Act. The question then arises whether evidence of at least the pointing out part of the confession would not nevertheless be admissible under s 218 of the Act, or some other rule of the common law.

[77] Section 218 reads as follows:

‘(1) Evidence may be admitted at criminal proceedings of any fact otherwise admissible in evidence, notwithstanding that the witness who gives evidence of such fact, discovered such fact or obtained knowledge of such fact only in consequence of information given by an accused appearing at such proceedings in any confession or statement which by law is not admissible in evidence against such accused at such proceedings, and notwithstanding that the fact was discovered or came to the knowledge of such witness against the wish or will of such accused.

(2) Evidence may be admitted at criminal proceedings that anything was pointed out by an accused appearing at such proceedings or that any fact or thing was discovered in consequence of information given by such accused, notwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible in evidence against such accused at such proceedings.’

[78] It is generally accepted that s 218(2) (or rather its predecessor in the previous Criminal Procedure Acts) was enacted to deal with the effect of Duetsimi.²¹ In R v Tebetha,²² Schreiner JA, in a minority judgment, fought a rearguard action to exclude evidence of a pointing out which only showed knowledge on the part of the accused, notwithstanding that this pointing conveyed nothing new about the thing being pointed out. The majority, however, found that evidence of the pointing out, even if nothing new was discovered as a result of the pointing out, was admissible as evidence of his own knowledge of the thing. In this way an implicating link between what would otherwise be an inadmissible statement or act of an accused and the thing or fact already discovered was established as admissible evidence.²³

[79] It was only some 30-odd years later that the trend justified by the majority judgment in Tebetha was stopped and reversed by the decisions in S v Sheehama²⁴ and S v January; Prokureur-Generaal, Natal v Khumalo.²⁵ These decisions established that a relevant pointing out could constitute an extra-curial admission by conduct; that evidence of an involuntary pointing out was inadmissible under s 218(2) of the Act; and remained inadmissible even if something relevant to the charge is discovered as a result thereof. Although these decisions dealt only with involuntary pointings out, it must be kept in mind that s 218 was never intended to create a general exception that made otherwise inadmissible admissions or confessions admissible.²⁶ That means that evidence of a pointing out that forms part of any inadmissible admission or confession remains inadmissible under either s 218(1) or (2) of the Act. The section as a whole does not permit proof of a link between the accused and the discovery of a thing or knowledge gained of a fact, unless that link is established by other admissible evidence.²⁷

[80] All that s 218 thus allows is evidence of the discovery of a thing, or knowledge of a fact; that is, of independently existing real or derivative evidence which is only discovered or found as a result of some inadmissible conduct or statement of the accused. Is such evidence admissible under s 218 without further enquiry? In my view it is not. The inadmissible conduct or statement of the accused which would lead to this real or derivative evidence would almost invariably be inadmissible for being in conflict with the accused’s fundamental rights under s 35(1)(a)-(c) of the Constitution.²⁸ It would thus usually be evidence that is obtained in a manner that violates a right in the Bill of Rights and it ‘must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice’. ²⁹

[81] In the present matter there are two factors which, in my judgment, render the evidence, of the recovery of the firearm and the results of the subsequent ballistic tests which shows that it was the firearm used in the killing of the deceased, admissible under s 35(5) of the Constitution. The first is that the police acted in good faith in recovering the firearm and the second is that even if the appellant did not lead them to the place where the firearm was, the police nevertheless already knew that the firearm was in Adelaide with his girlfriend and it is more than likely that they would have found it even if he did not lead them there. I can discern nothing fundamentally unfair in allowing the evidence; and it would not be detrimental to the administration of justice to do so.

[82] By a somewhat longer route, on this particular aspect, I find myself in agreement with the result of the main judgment.

_______________________

J.C. FRONEMAN

JUDGE OF THE HIGH COURT

LEACH, J:

[83] I have enjoyed the privilege of reading the judgments prepared by Froneman and Plasket JJ. I find myself in respectful agreement with the conclusion of Plasket J that the recovery of the firearm that was used to kill the deceased pursuant to the appellant having led the police to his girlfriend in Adelaide and telling her where the firearm was to be found, amounts to no more than an admission and did not constitute a confession. However, even if I am incorrect in that conclusion and the evidence of the recovery of the firearm is to be regarded as part of a confession, I agree with the reasoning of Froneman J set out in para [81] that such evidence should nevertheless be admitted.

[84] The only reservation I have in respect of the judgment of Plasket J is his conclusion in para [35] that once the evidence of Ngqoba had been rejected in its entirety, it was no longer possible to draw the link between the recovery of the firearm and the appellant having used it to murder the deceased. Although, strictly speaking, it does not seem to me to be necessary to reach any final conclusion in that regard, the appellant’s possession of the murder weapon and the circumstances under which it was recovered may well, in my opinion, in itself be sufficient to justify by inferential reasoning that he was the deceased’s killer.

[85] But, as I have said, it is not necessary for present purposes to reach a final conclusion in that regard. Ngqoba’s evidence should not have been rejected in its entirety and, having regard thereto and the recovery of the murder weapon in circumstances which leads to the inference that it must have been in the possession of the appellant at some stage, the inevitable conclusion arises that he was indeed the killer. I therefore agree that the appeal should be dismissed, and it so ordered.

_________________________

L.E. LEACH

JUDGE OF THE HIGH COURT

APPEARANCES:

For the Appellant: Ms N.E. Gcingca of the Grahamstown Justice Centre

For the Respondent: Mr L. Ngodwana of the office of the Director of Public Prosecutions, Grahamstown

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