IN THE HIGH COURT OF SOUTH AFRICA (Witwatersrand Local Division)

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA (Witwatersrand Local Division) Case No: A1197/2003 In the matter of the Appeal of: REMINGTON MUDAU Appellant and THE STATE Respondent JUDGMENT WILLIS J. The appellant was indicted on one count of murder, one of attempted robbery, a count of unlawful possession of a firearm (contravening section 2 read with sections 1 and 39 of Act 75 of 1969) and a count of unlawful possession of ammunition (contravening section 36 read with sections 1 and 39 of Act 75 of 1969). He was arraigned before Schwartzman J of this division.

2 2 It was alleged that he murdered Alexander George McConnel ( the deceased ) at the entrance of his home at th Street, Sydenham on 2 nd January, 2001 and that he attempted to rob the deceased of his Nissan bakkie using a firearm and ammunition which he was not lawfully entitled to possess. The appellant was found guilty on all counts and sentenced to life imprisonment for the murder, five years imprisonment for the attempted robbery, two years for the unlawful possession of the firearm and one year for the unlawful possession of the ammunition. The appellant made application for leave to appeal against both conviction and sentence. Schwartzman J dismissed the application. Thereafter, the Supreme Court of Appeal, granted leave to appeal and directed that the appeal against both conviction and sentence be heard by the full bench of this division. It is this appeal which is now before us.

3 3 It is clear from the admissions, the post mortem report, and the evidence of the deceased s domestic worker, Jacobeth Tshula, that the deceased was indeed shot and killed at about half past eight that night while he was attempting to enter his home. The deceased was found lying on his back with an unused firearm between his legs. He had been shot twice. One shot was in the shoulder and the second, fatal one in the abdomen. The deceased was 79 years old at the time of his death. It would appear that the deceased s assailants fled the scene. They did not take the bakkie which the deceased had been driving immediately before the attack. One Inspector Botha arrested the appellant together with one Nhlantha and Gabriel Letsapa on Friday 5 th January, 2001 near Louis Botha Avenue in the vicinity of Orange Grove. Following upon a report made to him by Inspector Botha, Inspector Hall the investigating officer stationed at Sydenham questioned Letsapa.

4 4 Lestsapa made a statement to Inspector Hall. In that statement he said that he met the appellant together with Nhlantha and one Ponso at the appellant s uncle s shop in 11 th Avenue, Alexandra on 3 rd January, They were laughing and he asked what was going on. He says as follows: Remington (i.e the appellant) told me that on the previous night, Mola, Ponso and himself were at some place near Louis Botha, he said he saw an old man open a garage door, there was a bakkie parked in front of the garage door. Remington said he saw that the old man was about to get into the bakkie and he pointed him with a firearm. The old man then tried to pull out his firearm but before he could do that Remington shot him three times in the chest. He said he then ran away from the scene and jumped onto Ponso s white Nissan Skyline and they chased away. Everyone was laughing because Remington was acting out the way the old man reacted and he thought it was very funny. The evidence before the court was that Louis Botha Avenue runs past both Sydenham, the suburb where the

5 5 deceased was killed as well as Orange Grove and that Sydenham and Orange Grove are contiguous suburbs. After the appellant had been arrested, he told Inspector Hall that he had been out partying on the night of the crime. There was evidence relating to what was said by the appellant in the course of a pointing out. I shall deal with this aspect later. Nhlanthla, who was to have been a state witness, refused to testify on the day he was due to give evidence because he was afraid for his life and that of his family. Ndu, who was also arrested and was due to be a state witness, disappeared without trace. Searches for Ponso have proven to be fruitless. It was common cause that the appellant did not have a licence to possess a firearm or ammunition therefor.

6 6 That was the evidence for the State. After the close of the State case, the appellant applied for a discharge in terms of section 174 of the Criminal Procedure Act, No 51 of 1977, as amended ( the Act ). The application was dismissed. The appellant the closed his case without leading any evidence. After the application for a discharge and the appellant had closed his case, the Court a quo directed that a trialwithin-a-trial in order to determine whether the appellant s pointing out made in relation to the alleged offences had been undertaken freely and voluntarily to one Superintendent Labuschagne and Inspector Mkhize (who also acted as an interpreter). The learned judge invoked his powers in terms of section 186 of the Act. I do not think he can be criticised for doing so. The court has a duty to exercise the power to call a witness where it is necessary to discover the truth in order that substantial justice is done between the accused and the prosecution. See R v Hepworth 1928 AD 265 at 277 and S V Ngcobo 1999 (3)

7 7 BCLR 298 (N). Superintendent Labuschagne was stationed at the Hillbrow police station and Inspector Mkhize was attached to the Organised Crime Unit. Neither was otherwise involved in the investigation of this case. Both gave satisfactory evidence relating to the free and voluntary nature of the pointing out. So did Inspector Hall in relation to the events leading up to the pointing out. The appellant elected not to give any evidence in the trial-within-a-trial. After the trial-within-a-trial, the evidence relating thereto and especially what was said during the course thereof was admitted by the Court a quo. I cannot fault the learned judge s decision. Although the place pointed out did not correspond with that where the deceased was killed, the accused admitted during the course of the exercise, to having been with Ponto (sic) and travelling with him in the Skyline. After the evidence was admitted following the trialwithin-a-trial, the appellant was, once again, given the opportunity to testify and, again, he declined to do so. Apart from criticising a measure of contradiction between the version put forward here pertaining to the fact

8 8 as to who came up with the story between Inspector Botha and Letsapa, no serious criticism has been levelled against the evidence of Letsapa. Appellant relies on the cautionary rule which applies when considering the evidence of a single witness. He also relies on the fact that a report of the murder of the deceased appeared in the Northern Record newspaper and submits that Letsapa could have obtained the story from there. The correct approach in determining whether there has been proof beyond a reasonable doubt is to have regard to the totality of the evidence. See S v Snyman 1968 (2) SA 582 (A) at 588H and the judgment of Nugent J, as he then was, in S v Van Der Meyden 1999(2) SA 79 (W) at 81A-C and 82A This approach has been expressly approved by the Supreme Court of Appeal in the recent case of S v Van Aswegen 2001 (2) SACR 97 at para [8]. I agree with Schwartzman J that the possibility that the appellant related another incident to Letsapa is too remote to be seriously considered. So also is the possibility

9 9 that he gleaned the story from a newspaper rather than from the appellant himself. Then there is the corroboration that the appellant admitted to Superintendent Labuschagne that he had been in the company of one of the persons mentioned by Letsapa and also had been travelling in a Skyline vehicle on the night in question. In S v Mthetwa 1972 (3) SA 766 (A), the Court expressly approved the following from S v Snyman(supra): The ultimate requirement, of course, is proof beyond reasonable doubt; and this depends upon an appraisal of the totality of the facts, including the fact that he did not give evidence. and the following passage in Hoffman s Evidence 2 nd ed pp429,in fin., to 430: If a witness has given evidence directly implicating the accused, he can seldom afford to leave such testimony unanswered. That an accused has a constitutional right to silence does not mean that negative inferences may not be drawn from such a silence during the course of a trial. See Osman

10 10 and Another v Attorney-General 1998 (4) SA 1224 (CC) at para [23]: The failure to testify does not relieve the prosecution of its duty to prove guilt beyond reasonable doubt. An accused, however, always runs the risk that, absent any rebuttal, the prosecution s case may be sufficient to prove the elements of the offence. The fact that an accused has to make such an election is not a breach of the right to silence. and S v Boesak 2001 (1) SA 912 (CC) at para [24]: If there is evidence calling for an answer, and an accused person chooses to remain silent in the face of such evidence, a court may well be entitled to conclude that the evidence is sufficient in the absence of an explanation to prove the guilt of the accused. Whether such a conclusion is justified will depend on the weight of the evidence. and then went on to refer with approval to the aforementioned paragraph in Osman s case (supra). There was certainly a prima facie case against the appellant which he failed to rebut. In my opinion, he was correctly convicted on all counts.

11 11 The appellant did not testify in regard to sentence. It appears that he was 21 years of age at the time of commission of the offences. The Court a quo did not misdirect itself in regard to sentence and none of the sentences causes me any disquiet. A sentence of life imprisonment for the murder in circumstances such as this is in any event mandatory in terms of section 51 of the Criminal Law Amendment Act No. 105 of The Court a quo clearly had regard to S v Malgas 2001 (2) SA 1222 (SCA), unlike the Court a quo in the case of S v Ndhlovu 2002 (2) SA SACR 325 (SCA) at para [55]. I have no doubt that the community would have been astonished if anything less than life imprisonment had been imposed for this murder. The appeal against conviction and sentence in respect of each count is dismissed. DATED IN JOHANNESBURG, THIS DAY OF MARCH,

12 12 N.P.WILLIS JUDGE OF THE HIGH COURT I agree. E.L. GOLDSTEIN JUDGE OF THE HIGH COURT I agree. V. G. FEVRIER ACTING JUDGE OF THE HIGH COURT Counsel for the Appellant: Counsel for the State: Advocate M. W. Dlamini. Advocate D. WillmanNel Date of hearing: 4 th March, 2004 Date of judgment: March, 2004