---

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH WEST DIVISION, MAHIKENG)

Case no: CAF01/2016

In the matter between:

ARABANG RONNY MASHI                                                        1^st Appellant

DONALD THULANNI KHUMA                                                   2^nd Appellant

And

the STATE                                                                                             Respondent

 

FULL BENCH CRIMINAL APPEAL

 

KGOELE J, GUTTA J, NOBANDA AJ

DATE OF HEARING                          :        25 May 2018

DATE OF JUDGMENT                       :        24 August 2018

FOR THE APPELLANTS                  :        Adv. Skibi

FOR THE RESPONDENT                 :        Adv. Nontenjwa

JUDGMENT

KGOELE J.

INTRODUCTION

[1] The appellants were initially facing 16 counts comprising of various charges ranging from murder, attempted murder, robbery with aggravating circumstances, unlawful possession of a firearm and ammunition, including discharging of a firearm in a public place.  They were eventually convicted of the following counts:

· Count 1 - Murder read with the provisions of Section

51 and Part 1 of Schedule 2 of Act 105 of 1997

· Count 2 - Attempted Murder

· Count 3 - Robbery with aggravating circumstance as

Defined in Section 1 of Act 51 of 1977

· Count 4 - Robbery with aggravating circumstances as

defined in Section 1 of Act 51 of 1977

· Count 7 - Discharge of a firearm in a built up area or any public place

· Count 13 - Robbery with aggravating circumstances as

defined in Section 1 of Act 51 of 1977

· Count 16 - Robbery with aggravating circumstances as defined in Section 1 of Act 51 of 1977

[2] Prior to the commencement of the trial the following Counts were withdrawn against them, Count 5,6,14 and 15.  They were found not guilty and discharged on Counts 8, 9, 10, 11 and 12.

[3] The appellants were both sentenced to life imprisonment in respect of Count 1, ten (10) years imprisonment in respect of Count 2 and five (5) years imprisonment in respect of Count 7.  In respect of Count 3, 4, 13 and 16 the first appellant was sentenced to fifteen (15) years imprisonment on each count.  The second appellant was sentenced to twenty (20) years imprisonment on each of the Counts 3,4,13 and 16.

[4] The appellants’ applications for leave to appeal against both conviction and sentence were dismissed by the trial Court.  Upon petitioning the Supreme Court of Appeal, they were granted leave to appeal to the Full Bench of this Division on the 9 February 2016, hence this Appeal.  Their Appeal was accompanied by an application for condonation which was duly granted by this Court.

 

SUMMARY OF THE EVIDENCE

[5] In this judgment, I will not summarise the evidence of all the witnesses who testified in the trial Court.  I will only concentrate on the evidence of the witnesses that were led to prove the Counts the appellants were convicted of.

[6] It is prudent to highlight how the Counts they were convicted of were comprised of for a better understanding of this judgment.  Count 1 was a murder charge of warrant officer Ganenang.  Count 2 was a charge of attempted murder of his fiancé, Ms. Morebudi.  Count 3 was the robbery of warrant officer Ganenang’s pistol, cellphones and a laptop.  Count 4 related to robbery of Ms. Morebudi’s cellphone and R600-00 in cash.  Count 7 related to discharging of a firearm in a public place. Count 13 was a robbery of Ms. Madilola’s cellphone, spectacles and handbag containing valuables and Count 16 robbery of Gomolemo’s cellphone, a child who was in the Ganenang’s home.

[7] Count 1 up to 4, including Count 16 comprised of the offences which were allegedly committed at warrant officer Ganenang’s premises.  The evidence of warrant officer Ganenang’s fiancé is that on the night of 4 September 2011 around 20h30, two men walked into the kitchen whilst she was busing dishing up dinner for the family.  The two assailants who were both armed, fired a shot at them killing warrant officer Ganenang and injuring her on the thigh in the process.  They stole altogether six cellphones from the house, three belonged to warrant officer Ganenang, two to her, one to the child, Gomolemo.  In addition, they took R600-00 belonging to herself, and a laptop belonging to warrant officer Ganenang.  When they were busy taking all these properties, they appeared to be talking to someone who remained outside.  She could not identify the two men as they had covered their faces.

[8] When asked to identify the cellphones, she said that the ones belonging to warrant officer Ganenang were a Blackberry and a Nokia but could not remember the other one.  Hers were two Samsung.  She however could not remember the model of all these phones.  The cellphone that belonged to Gomolemo was also a Nokia according to her.  She added that when she was called to identify the cellphones at the police station, she was able to identify the two cellphones belonging to the deceased, although she indicated that she was not sure whether it was the deceased’s phone or Gomolemo’s phone, because they looked similar.  Hers were not there.  She maintained in Court when she was shown the cellphones that she cannot say with certainty that they were her husband’s or hers because they looked similar. She was also not in a position to identify the laptop.

[9] In as far as the offences that relate to Count 7 and 13 are concerned, the evidence of Ms. Madilola, who was driving a car together with her friend was that they were robbed by two men who were armed with firearms on the same night. They could also not identify these men because they had covered their faces. After forcing them to stop on the road by firing a shot in the air, they dispossessed them of some articles, which included a cellphone, handbag containing a purse, identity document, bank cards and the key of the car they were driving at that moment. They eventually managed to get back the car key from one of the villagers who picked it up somewhere after the robbers threw it away. Ms. Madilola managed to get back her hand bag later together with the identity document, purse and the spectacles still inside.  She was only given the ID and spectacles but the bag remained with the police.  Later after some days she was called to the police station to identify the cellphone.  She identified it with the IMEI number which was still visible on it and matched the same number which was on the box she had always kept at home.

[10] The other evidence the State relied upon was of a police officer Keogile, who retrieved a firearm at the girlfriend’s place of a Section 204 witness, Mr. Modibedi, who was on that particular day responsible for driving the appellants from one place to the other, according to his evidence which will be summarized later.  The police officer testified that she found the firearm between a mattress and a base of the bed where the Section 204 witness’s girlfriend was sleeping.  The girlfriend gave her permission to search when the Section 204 witness was not there.  He apparently came later whilst the police were still there and he was arrested as well at that time.

[11] Mr. Modibedi, a Section 204 State witness’ testimony is to the effect that on the 4 September 2011 around past ten during the night, he was called by the first appellant to come to his place.  He drove there.  Upon arrival he found him with the second appellant.  He was asked to convey them to the second appellant’s home and thereafter to town.  When they left the second appellant came out of his home carrying a plastic bag.  The two appellants also emerged having changed their attire.  On their way to town he saw the first appellant having a cellphone and a laptop.  Upon enquiring where he got them from, the first appellant said that they took them from a certain person.  After buying food in town, they went to Traders Tavern.  Subsequent to that they went to a jazz festival.  Before getting into the festival, the first appellant who was carrying two firearms at that stage, requested him to allow him to leave one firearm in the car.  After enjoying themselves at the jazz festival they went home at around five in the morning.  He dropped them off at the first appellant’s home.  It was only when he reached his girlfriend’s place that he remembered about the firearm that was left in his car.  He tried to call the first appellant but his phone was off.  He then decided to leave this firearm at his girlfriend’s place, where the police found it.  Contrary to the evidence of the police officer who said she searched the place, Modibedi said he met with the police officer after he left his girlfriend’s place, and the police officer arrested him whereupon he led them voluntarily to his girlfriend’s place.  Further that, he is the one that pointed out the firearm to the police officer telling them that he has a firearm belonging to the first appellant.  He explained to them the circumstances that led to the firearm being in his possession.

[12] Sylvia Tshabalala, who was a girlfriend to the second appellant at that time testified that on the 4 September 2011 at around 20h00 the first appellant came and he requested to leave with the second appellant.  He was carrying a firearm.  As she was highly pregnant she initially refused the second appellant permission to go with the first appellant.  The first appellant left and he returned around midnight (24h00) carrying a plastic bag.  The second appellant took the plastic bag and placed it under the bed she was sleeping on.  The two appellants left.  Whilst they were away, she heard a cellphone ringing in the plastic bag.  When they came back in the morning they came with one of their friend called Mazibuko, who exchanged his T-shirt after the second appellant gave him his clean T-shirt.  When cross examined she said she managed to see that there were ten cellphones and a laptop in the plastic bag.

[13] Lebogang Makhathini, a street vendor, testified about how he bought four cellphones and a laptop from the second appellant.  He further indicated that the following day the police came with the first appellant and retrieved those articles he bought.  He could not remember the date and month.

[14] Sergeant Karel gave evidence that he was part of the team of police officers who arrested the second appellant on 9 September 2011.  He indicated that he was found in a Golf car which the police had stopped.

[15] The other evidence that was relied upon by the State was the contents of the confession and/or admission statements allegedly made by the two appellants regarding the commission of the offence.

[16] A trial-within-a-trial to determine the admissibility of the statement which was allegedly made by the first appellant to a police Captain was conducted because the defense objected to the handing in of this particular statement on one ground only, namely, that the first appellant was assaulted by Myburg and Mothowagae on the date of his arrest.  The State called four witnesses to give evidence.  Only one out of all these witnesses, Sergeant Mashaba, admitted that he was present during the arrest of the first appellant.  He said that at the time of the arrest the appellant had already sustained the injuries.

[17] Warrant Officer Mothowagae said he was not present during the arrest, and he never assaulted the first appellant.  Captain Mogatlanyane said he was not present during the arrest of the first appellant, but the first appellant was brought to him so that he can take down his statement.  According to him the first appellant made that statement without any undue influence.  Captain Mogatlanyane, just like Mothowagae, testified that the first appellant had injuries on the face when they first saw him.   According to these two officers, each one of them did separately ask the first appellant how he sustained the injuries, and he gave an explanation.  The explanation was that he fought with one of his friends at a tavern before he was arrested.  The same applies to Sergeant Mashaba.  He said that when he asked him about the cause of the injuries on the face he gave the same explanation.  The only thing he never responded to was when he was asked how he sustained the injury which caused him to limp.  According to them, he did not reply thereto.

[18] Warrant Officer Myburg said he saw the first appellant at the time he was seated in an office at the SAPS offices.  It was on the day when members converged to the Organised Crime Unit plus Canine Centre in order to organize themselves to go and search for the second appellant.  He saw the first appellant when he was seated in an office, but it is not the same office where he [Myburg] was.  He said he never spoke to the first appellant nor assault him at all.  According to him he did not see any injuries on the face, particularly of this particular suspect.

[19] As far as the admissibility of the statement allegedly made by the second appellant is concerned, the State led evidence of five police officers to refute the allegation that he was assaulted by the police and also made to sign pages they had already filled.  The first three police officers who testified were according to the State, present during the arrest of the second appellant, and actually effected his arrest.  They are Warrant Officer Thaga, Sergeant Karel and Sergeant Myburg.

[20] The fourth police officer who testified was Colonel Dince.  This is the officer who says he contacted the Captain who was supposed to take a statement from the second appellant after his arrest when he indicated that he wanted to make a statement. The last witness for the State was Captain Mtombo who said he was the one who took down the statement from the second appellant.

[21] The three police officers who arrested the second appellant testified about the circumstances under which he confessed and the place where he was arrested. According to them the second appellant was arrested on the road between Rooigrond and Mafikeng. A car was stopped and the second appellant was found seated at the back seat of the car. As one of the officers was busy talking to the driver of this car, the second appellant, who was at the back seat at that time, got out of the vehicle and ran away. After running for a distance of about two or three paces, he fell down. The place where he fell was next to the road, a tarred road, but he fell on the gravel surface of the road which had some fixed stones on the ground.  The evidence of the three officers is that, he was then arrested and he was handcuffed on both of his hands, from the back.  Just when the police thought that he would enter the police vehicle, being under arrest at that time, he ran again.  This time still handcuffed from the back.  He fell again on this stony surface. That is then the evidence of the three police officers who arrested the second appellant as to what caused the injuries on the second appellant’s shoulder.

[22] Colonel Dince confirmed the evidence of Thaga, that he received the second appellant in his office on that Friday the 9^th of September 2011.  According to his testimony it was a busy Friday to them as police officers, because the subsequent day, they were to bury their colleague, the deceased in this case.  He attempted to get an independent officer out of his area of jurisdiction to come and take the statement from the second appellant, but he could not get one.  He then directed that the second appellant be detained.  On Sunday he telephonically arranged with Captain Mtombo, based at Lehurutshe Police Station, to come over to Mafikeng Police Station to take a statement from the second appellant.

[23] He testified that on that particular Sunday when the statement was taken, he was not at Mafikeng Police Station, and denied therefore the evidence of Captain Mtombo that he is the one who brought the second appellant to him on that Sunday. In regard to the alleged assault next to the office, he indicated that he did not witness any assault on the second appellant.  In fact it was put to him, specifically by the defense, that the second appellant was assaulted in his office by being bumped against a pillar which is inside his office. He vehemently denied the assault and further stated that there is no pillar inside his office.  He was asked whether there were no pillars then in the corridor.  To this question he answered positively and then the defense shifted its position to the pillar outside the office.  It was thereafter put to him that the second appellant was assaulted in the passage, bumped against a pillar, which was in the passage, not inside his office. 

[24] Captain Mtombo testified and basically confirmed that on the 11^th September 2011 he received a telephonic request from Colonel Dince, who requested him to proceed to Mafikeng Police Station to take down a statement from the second appellant.  According to him, he found the second appellant there, interviewed him and interacted with him through a particular form which is entitled: “Statement Regarding Interview with Suspect”.  This was Exhibit J before the trial Court.  His evidence is that he explained the rights of the second appellant as they appear in this form and that he noted his replies.  When it came to paragraph number 7 in the form it reads:-

“Does the accused have injuries?  Does the accused not have injuries?” 

He was supposed to scratch out one option depending on his observation.  Instead of scratching the one which was applicable, he did not, so there is no reply here.  The next sentence under paragraph 7 says:-

“I asked the suspect to show me the injuries and I noticed the following”

There he wrote “not applicable” The next sentence, still under paragraph 7 was:

“I asked the suspect how and when he had sustained the injuries and he replied as follows:-

He wrote “not applicable” as well.

[25] He was then asked by Counsel for the defense what the proper reply is to this paragraph 7, which prima facie has no reply.  He tried to guess and said, the second appellant did not have injuries.  When asked why the form does not speak that language, he had no explanation, except to say this is an error, a mistake on his part.  He insisted that he did explain to the second appellant all his rights and he wrote down his answers.  He identified his signature on this document from the first page up to the last page of Exhibit J, as well as that of the second appellant.

[26] The trial Court found as far as the admissibility of the statement of the first appellant is concerned that the evidence of the State is strong enough to show that the first appellant did not sustain any injuries at the hands of the police, when on the other hand the first appellant  did not give any evidence except to hand in Exhibit ‘F’ and ‘G’ which are the extracts from the hospital records that he did  receive medical treatment for assault related injuries and a charge sheet wherein the Magistrate wrote that the first appellant reported on the first day of his appearance that he was assaulted by the police.  It appears from the judgment of the trial Court in a trial within a trial that it accepted the fact that the assault was also reported to the doctor by the first appellant.  The trial Court further made a finding that the denial by Myburgh of any injuries on the first appellant’s face is not an indication that he was lying as it is clear from his testimony that he had nothing to do with the first appellant.  The statement of the first appellant was admitted and used as evidence against him.

[27] In as far as the second appellant is concerned, the trial Court also made a finding that his version that he was assaulted by the police and that he never made a statement was not true.  Further that the failure by Captain Mtombo to note the replies of the second appellant and/or scratch out what was not applicable in paragraph 7, was a mere negligence on his part and not an indication that he was dishonest.  Lastly that, if the issue of how he was injured was a collusion on the part of the five police officers as the second appellant alleged, then it is a very rare type of a collusion to find amongst the members of the police force.  The trial Court rejected the second appellant’s version and ruled his statement admissible.

[28] Having found that the two statements of the appellants were admissible, the trial Court found after evaluating the whole evidence that was before it, that the State succeeded in proving the guilt of both appellants beyond reasonable doubt on the Counts that they were convicted on.

 

ANALYSIS

[29] The main ground of Appeal was that the guilt of the appellants was not proven beyond a reasonable doubt in that:-

29.1 The trial Court erred in admitting the evidence of the confession statements allegedly made by both appellants respectively;

29.2 The robbed property (cellphones & laptop) was not properly identified as those belonging to the victims who were robbed on the night in question;

29.3 Without the evidence of the confessions and the lack of the link between the property which was found from Mr Makhathini and the robbed items, leaves some doubt that the discovered goods were those which were robbed during the shooting at Mrs Marry-Jane Kealeboga Morebudi’s home and those  robbed from Mrs. Madilola on the street;

29.4 The absence of the ballistic evidence linking any of the firearms allegedly seen by Mr. Modibedi (and recovered by the police subsequent to that) on the night in question with the cartridge cases found at the scene of both incidents shows that the convictions of the appellants cannot be sustained if the evidence of the confessions were to be excluded;

29.5 There were contradictions in the State case which are of material nature.

[30] As a further ground of Appeal the appellants raised the following Points in Limine:-

30.1 The presiding Judge should have recused himself based on the comments he made;

30.2 The first appellant did not receive a fair trial as he was refused a chance to testify.

 

Admissibility of the first appellant’s statement

[31] Advocate Skibi on behalf of both appellants submitted that the trial Court erred by making a ruling that the statement of the first appellant was admissible.  He submitted that there is objective evidence that the first appellant had been assaulted although three police officers denied assaulting the appellant.  He maintained that there was a contradiction whether the first appellant had injuries on the face before he was arrested as the other police officers claimed because Myburgh, who also testified on behalf of the State denied having seen any injuries on the face of the first appellant immediately after he was arrested.  Advocate Skibi argued that it is therefore apparent that the trial Court erred in finding that the police officers corroborated each other on the aspect that the first appellant sustained injuries before he was arrested.

[32] Advocate Skibi further submitted that the evidence of assault from the medical record and the recording of the notes of the Magistrate when the first appellant made his first appearance in Court, which were presented during the trial is more credible than what was said by the police officers.  His reasoning is that the first appellant made this report that he was assaulted by the police to both the doctor and the Magistrate just four days after his arrest than what was said by the police in 2013, a period of two years later.

[33] With regard to his failure to testify, Advocate Skibi submitted that no adverse inference can be drawn against him because it was common cause that the first appellant had injuries when he made the statement and the State failed to prove beyond reasonable doubt that the injuries were already there when they arrested him as they claimed.  He finally urged this Court to find that the State failed to prove beyond a reasonable doubt that the said confession was made freely and voluntarily without being unduly influenced.

[34] Advocate Nontenjwa representing the State replied by submitting that the evidence presented by the State had established that although the appellant had injuries, the confession was not obtained as a direct consequence of such injuries.  He vehemently supported the verdict given by the trial Court that the statement was admissible.

[35] I am of the view that the submissions by Advocate Skibi regarding the admissibility of the first appellant’s confession has merit.  It appears from the judgment of the trial Court that it accepted the fact that the first appellant had injuries on the date in question.  It also accepted the fact that the first appellant reported to the Doctor and to the Magistrate on his first appearance in Court that he was injured on the face as a result of being assaulted.

[36] It is trite law that the State bears the onus to prove beyond a reasonable doubt that a confession was made freely and voluntarily and without undue influence.

[37] The evidence of the three police officers is basically that the first appellant had already sustained the injuries in question before he was arrested.  As Advocate Skibi correctly submitted, there is a contradiction in the evidence of the State as to whether the appellant had injuries on him already when he was arrested or not.  Although the three police officers corroborated each other on this aspect, Myburgh, who claimed to have seen the first appellant on the day he was arrested, denied having seen any injuries on his face.

[38] In my view, the trial Court overlooked this contradiction.  In fact the trial Court did not at all see this aspect as a contradiction per se.  My reasons are firstly that, the issue as to when the first appellant was seen having injuries was crucial and as it goes to the root of the question which the Court was grappling with.  Secondly, if there is a contradiction on this aspect, then it becomes material.

[39] The trial Court made a finding that Myburgh could not have seen the injuries on the first appellant on that day because he saw him in another office when he had no dealings with the appellant on that day.  Contrary to this finding, the record of proceedings reveals that Myburgh, although he was not in the same office with the first appellant when he saw him, he clearly saw his face. His evidence quoted verbatim shows that Myburgh said the following:-

“Now, from where you saw the first appellant can you tell if he was injured?..........

Injured in what sense?... I saw him face to face in the office sitting on the chair, and I passed the office, but underneath his clothes I could not see.  But facially he did not have any marks on his face or dinges …… his arms where I can see his skin.  There was no marks” [Emphasis added]

[40] From his account of events, one can clearly deduce that he was in close proximity to the first appellant at that time as he managed to see his face including his arms and can further positively testify that he did not have any marks on his face and arms.  Of significance is the fact that when Myburgh saw the first appellant, it was on his first day of arrest.  Cognisance should be taken that the three police officers corroborated the first appellant that the injury he had was a swollen eye.  As to how Myburgh did not see this injury when he claimed to have seen his face is highly questionable, if not a lie.  In my view, this is a material contradiction in the evidence of the State and it taints the credibility of the police officers as to what caused the injuries.  This obviously affects the weight to be attached to their evidence, especially taking into consideration that the onus rest on the State to prove beyond reasonable doubt that the statement was made freely and voluntarily.

[41] In addition, some strange things and/or questionable things happened in this matter.  According to the police officers they saw that the appellant was injured when they arrested him, they nevertheless did not take him for medical attention.  He was only taken for medical treatment four days thereafter, after he reported to the Magistrate during his first day of appearance, and long after the statement was taken.

[42] He was arrested on the 5^th September 2011.  He only appeared in Court on the 9^th of September 2011, four days after the arrest. Clearly, the 48 hours threshold had long expired at that time.

[43] A confession was taken from him before he was taken for medical treatment even though according to them, everybody that participated in the arrest saw that he was having an injury on the eye and he was limping.

[44] Despite the fact that he was injured, the police officers decided that one of their own, a police officer take the confession, rather than taking him to an independent person, a Magistrate.  Although there is no law that bars them from taking confessions and/or compels them to take a suspect to a Magistrate for a confession, our law and our Courts have repeatedly criticized this practice. In S v Mahlabane 1990 (2) SACR 558 (A) the Court found that the fact that the confession had been made by a police officer who was attached to the same unit did no render the confession per se inadmissible, but that, the appellant had, however, created sufficient suspicion that it had been improperly obtained. In my view, the circumstances they want to portray in this matter if they are to be believed, warranted an objective reasonable man to have taken the said confession. Cognizance should also be taken of the fact that one of their own, a police officer was killed in this incident.

[45] I furthermore fully agree with Advocate Skibi that an adverse inference cannot be drawn from the failure by the first appellant to testify.  In S v Thebus and Another [2003] ZACC 12; 2003 (2) SACR 319 (CC), the Constitutional Court laid this issue to rest and held that drawing an inference as to the guilt or credibility solely from the silence of the accused would render the trial unfair.

[46] In addition, it appears that the trial Court also overlooked the fact that Exhibit “F” and “G” which was handed in by the legal representative of the first appellant after the State had closed its case, is evidence on behalf of the first appellant.  It appears from the following remarks by the trial Court that an inference was drawn from his failure to testify viva voce and this influenced the ruling of the trial Court:-

“I am satisfied that the evidence of the State is strong enough to show that the accused did not sustain any injury at the hands of the police, especially that all the defense did was to hand in Exhibit “F” and “G” without tendering any evidence.” [Emphasis added]

[47] I therefore fully agree with Advocate Skibi that the trial Court erred in admitting the confession statement of the first appellant, it should have been excluded because the State failed to prove beyond reasonable doubt that the injuries that were on the first appellant when he made the said confession were not due to the assault by them as the first appellant contended.  Instead, the version of the first appellant is reasonably probably true.

 

Admissibility of the second appellant’s statement

[48] The second appellant was arrested on the 9^th of September 2011.  He also indicated to the trial Court that he was assaulted in order to make a statement which the trial Court ruled admissible.  The police officers who arrested him do not deny the injuries but gave an explanation that he was injured during the arrest as he kept on falling when he attempted to flee on two occasions.

[49] Advocate Skibi submitted that the trial Court erred by ruling that the statement was admissible when in fact the State did not proof beyond reasonable doubt that the second appellant was not assaulted by them.  He maintained that the arresting officers created a picture that the second appellant was not co-operating with them during the arrest as he tried to flee twice.  According to him, it is unthinkable that shortly after his apprehension he was co-operative and wanted to voluntarily bring some new information to them.  He furthermore submitted that the trial Court erred by criticizing the second appellant for not reporting to the Magistrate he appeared before during his first appearance in Court that he was assaulted by the police like the first appellant did.

[50] The crux of the second appellant’s defense as correctly evaluated by the trial Court is that the police colluded with each other to make him sign the statement that they had prepared, and that he signed it because of the prior assault that they exerted on him.  The trial Court, despite observing some contradictions and discrepancies in the evidence of the police officers, made a finding that they are honest witnesses, and accepted their evidence in admitting the statement of the second appellant.

[51] I fully agree with Advocate Skibi that the Court erred in admitting the statement of the second appellant.  As indicated during the summary of the evidence of the police officers, the roneo form that was filled by the police officer who allegedly took a statement from him (Mtombo), does not specify whether the second appellant , when he so made the statement, was having injuries or not, and also, whether if he had injuries, what caused them.  The form was simply silent on these aspects.  The trial Court in assessing this discrepancy in the evidence of the State remarked:-

“The Court is of the view that by failure to reply or to scratch which is not applicable in paragraphs 7, it is mere negligence on the part of Captain Mtombo, but this is not any indication that he was dishonest.  He is not the only officer who fell fowl of this trap.  I see it frequently.  Commissioned officers of SAPS who seem not to place any importance on this particular form”.

[52] In my view the trial Court erred in this regard. It is clear that it overlooked this important aspect which is the core of the issues that were before it.  This form which the trial Court had accepted the fact that police officers do not regard it as important is in my view, crucial in the determination of the admissibility of the statement made by accused persons.  The questions left unanswered by Captain Mtombo, an experienced Senior Officer of SAPS, are crucial to the issues raised by the second appellant and for any other accused for that matter.  Normally, the person that takes a statement, whether an admission or a confession should be a Commissioned Officer if he or she is a member of the police.  This requirement was made solely to assist the Court in the objectiveness of the contents of the statement.  If it is silent, especially on these two crucial questions directly relating to the admissibility of the statement, taints, in my view, the objectivity of the person taking the statement and the statement itself.  There is therefore no corroboration from the evidence of Mtombo and the roneo form he allegedly completed when he interviewed the second appellant to the fact that he was or was not injured.  As to why this paragraph was not at all dealt with in a diligent and appropriate manner, and worse, by an experienced senior officer is still a mystery.  He is expected to know that amongst other paragraphs, this is a very important question that should be answered and completed.   But above all, Courts cannot condone the mediocrity with which these forms are treated by members of SAPS because, these forms and the questions therein deal with the admissibility of statements which often incriminates accused persons and overrides their rights enshrined in the Constitution.  Due diligence is expected from them.

[53] But the problem does not end here.  When it was put to Mtombo during cross-examination by the legal representative of the second appellant that the other police officers together with the second appellant indicated that when he made the statement he was already injured on his shoulder, he replied by saying that he did not see these injuries and the second appellant did not inform him of same.  Unfortunately, the failure by Captain Mtombo to deal with this paragraph lends some credence to the version of the second appellant that the forms came prepared and he was forced to sign.  Furthermore that, the second appellant did not meet him on this day, because if he met him, he would have seen a bandage which the appellant used as a sling for his injured right shoulder.

[54] This is in my view, a misdirection on the part of the trial Court because once again the second appellant created sufficient suspicion that the statement could have been improperly obtained.  In my view, the statement of the second appellant should have been declared inadmissible.

[55] Having made the conclusion above regarding the admissibility of the two appellants’ statements, it is prudent to deal with the next question which is, whether the evidence that remains can sustain the counts the two appellants were convicted of, which is also another ground of Appeal raised by the appellants.

 

The link between the goods recovered and the firearms to the two

Appellants

[56] The submission of Advocate Skibi in this regard is that the trial Court erred in finding that the State succeeded to prove the guilt of the appellants beyond a reasonable doubt.  His argument is two-fold:-

· Firstly that, if the statements of the appellants are excluded, there is no evidence linking the appellants to the goods that were robbed (the cellphones and laptop) on both the different scenes of incidents;

· Secondly that, if the evidence of the confessions were to be excluded, the lack or absence of the ballistic evidence linking any of the firearms allegedly seen by Mr. Modibedi (Section 204 witness) and recovered by the police subsequent to that at his girlfriend’s place, including the cartridges found at the scene of both incidents, reveals that the convictions of both appellants on the counts relating to the possession of a firearm and others related thereto, cannot be sustained.

[57] The crux of his arguments is that the robbed properties were not properly identified by all the witnesses as those belonging to the victims who were robbed on the night in question.

[58] Advocate Nontenjwa representing the State does not agree with the submissions of Advocate Skibi above.  He submitted that the totality of the evidence indeed established the guilt of the appellants and the explanation of the appellants regarding their assault by the police cannot be reasonably possibly true.

[59] In casu, it is common cause that at both scenes none of the complainants were able to identify the attackers because they had covered their faces at the time of the attack. It is also common cause that there was no ballistic evidence of the firearms that were used and/or were allegedly seen in the possession of the appellants including the cartridges found at the two scenes. The second argument relied upon by Advocate Skibi can therefore summarily be disposed of by making a finding that there is therefore no connection or the link that connects the appellants to all the counts relating to the firearms.

[60] Coming to the recovery of the goods that were robbed, I am of the view that Advocate Skibi’s submissions on this issue are sound.  This fact was also accepted by the trial Court as seen more clearly in its judgment for leave to Appeal. The trial Court remarked in the leave to Appeal judgment that in its view, the State did not prove beyond a reasonable doubt as to whom does the laptop belong which was found in Makhathini’s possession.  Sight should not be lost that the fiancé to the policeman who was killed (Mr. Ganenang) could not even identify the said laptop in Court.

[61] As far as the cellphones which were retrieved from the second appellant and from the street vendor, Mr. Makhathini are concerned, ownership thereof was not positively identified as belonging to a particular complainant, or the deceased. The evidence of Mr. Makhathini could not assist the case of the State because, he could not even remember the date when these cellphones were sold and retrieved from him. He could also not remember the brand of the cellphones except to refer to them as “Nokia”.

[62] The same applies to the fiancé of the police officer who was killed.  She could not remember the make of her cellphone including those of the deceased, and even that of the daughter other than to refer to them as “Nokias” and a “Blackberry”.  This was made worse by the fact that even in Court when she was requested to identify the cellphones, she told the trial Court that she could not except to say they belonged to her or her family because they look alike.

[63] The evidence of Mr. Modibedi, (Section 204 witness) cannot take the State’s case any further because he only saw the cellphones and the laptop in a plastic bag carried by the second appellant when he was driving.  The same applies to the evidence of Sylvia, the second appellant’s girlfriend, as she only heard the cellphones ringing.

[64] As far as the cellphone that belonged to Ms Madilola is concerned, although she was able to identify it with the IMEI number as hers, the State did not lead any evidence to the effect that, this cellphone which Ms Madilola positively identified, is one of the phones which were seized by the police from the second appellant when he was arrested and further that they form part of those that were or impounded by them from Mr. Makhathini.

[65] I fully agree that in so far as the identification of all the cellphones is concerned, the chain of evidence regarding the recovery of the cellphones and the proper identification of the cellphones is crucial and necessary to link the two appellants or the said attackers to the commission of the offences/counts they were convicted of. Sight should not be lost of the fact that the identity of the robbers was at stake and the State relied on circumstantial evidence on this aspect. In addition, the following aspects are important and should be taken into consideration as well:-

· The second appellant, from whom the cellphones were found in his possession was only arrested on the 9^th, when the incident took place on the 4^th and 5^th;

· The State did not lead the evidence of the police officer who retrieved the cellphones from Mr. Makhathini;

· No police officer was called to deal with the chain of evidence as to the date and time when the cellphones were received at the police station, the cell register number, whether they were kept separately or mixed with other cellphones retrieved from other different cases;

· There were many cellphones retrieved in this matter, without the chain above, it will be difficult to point or connect each cellphone to the appellants individually regarding the possession thereof, especially taking into consideration the defects in the evidence of the State regarding the ownership of these cellphones, and the fact that there was nothing that was found in the possession of the first appellant.  This link is crucial because there are several counts and different scenes of crimes.

[66] I am of the view that without the evidence of the confession statements by the appellants, including the absence of the link between the property which was found from Mr. Makhathini and the second appellant and the robbed items, leaves doubt that the discovered items were those which were robbed during the shooting at Mrs. Marry-Jane Kealeboga Morebudi’s home and those which were robbed from Mrs. Madilola on the street.   This presupposes that, there is therefore insufficient and no cogent circumstantial evidence linking the appellants to the commission of all the counts that they were convicted of relating to the murder and the robberies.  The State therefore failed to prove its case beyond reasonable doubt in all the counts the appellants were convicted of.

[67] The conclusion that I had reached above regarding the evidence that was led by the State, is dispositive of the matter and renders it unnecessary for this Court to deal with the points in Limine raised by the appellants as further grounds of Appeal and the Appeal against sentence.

[68] The following Order is therefore made:-

68.1 The Appeal against conviction and the resultant sentence of both appellants on Counts 1,2,3,4,7,13 and 16 is upheld;

68.2 The conviction of both appellants including the resultant sentences on Counts 1,2,3,4,7,13 and 16 are hereby set aside;

68.3 Both appellants are found not guilty and discharged on Counts 1,2,3,4,7,13 and 16;

68.4 Immediate release of the appellants is ordered if they are still in custody in this matter only.

 

 

                                     

A.M. KGOELE

JUDGE OF THE HIGH COURT

 

I agree

 

 

                                     

N. GUTTA

JUDGE OF THE HIGH COURT

 

 

I agree

 

 

                                     

P.L. NOBANDA

ACTING JUDGE OF THE HIGH COURT

 

 

ATTORNEYS

For the Appellants: Legal Aid South Africa

1^st Floor Protea Office Park

Sekame Street

MAHIKENG

For the Respondent: Director of Public Prosecution

2^nd & 3^rd Floor, Megacity East Gallery

3139 Sekame Street

MMABATHO

---