Crim.Appeal Case No.39/02
In the matter between:
PETROS MAHLANGU Appellant
VS
REX Respondent
CORAM : BROWDE J.A.
BECK J.A.
ZIETSMAN J.A.
For Applicant : In person
For Respondent : N. Maseko
JUDGMENT
Beck J.A.
The applicant was convicted by a Senior Magistrate on two counts of robbery and also on two counts of contraventions of the Arms and Ammunition Act 24 of 1964. On each of the counts of robbery he was sentenced to 5 years imprisonment, the two sentences to run consecutively. On count 3, the possession of an unlicensed pistol, he was sentenced to 5 years imprisonment, 3 of which were conditionally suspended. On count 4, the unlicensed possession of 6 rounds of ammunition, he was sentenced to 6 months imprisonment. The sentences on counts 3 and 4 were ordered to run concurrently with the sentences on counts 1 and 2, so that his effective sentence of imprisonment was 10 years.
The applicant appealed unsuccessfully to the High Court against both conviction and sentence. He applied to the High Court for leave to appeal to this Court, but leave to do so was refused. He has now applied to this Court for leave to appeal. His application is opposed by the Crown on the ground that it has no reasonable prospect of success.
The applicant’s defence is that he was mistakenly identified by the complainants on counts 1 and 2 as their assailant, and that he knows nothing about the pistol and ammunition that the Police allegedly found in the house where he lives.
With regard to the identification of the applicant it is perfectly clear that each of the complainants had an ample opportunity of observing him when they were robbed. It was broad daylight when they were accosted and each of them was in his company for quite some time. The complainant on count 1 is the secretary of the complainant on count 2, who is the principal of the Simunye Primary School. She noticed the applicant sitting in her office where parents were paying school fees. After a while he rose, came to her and having produced a firearm he asked who the owner was of a Mercedes car that could be seen from her window parked on the school grounds. She told him it belonged to a female teacher and offered to take him to her classroom. She moved towards the door of the storeroom where there was a safe in which she intended to put some cash that she had in her hand. The applicant followed her with his gun, threw a small bag to her and ordered her to put all the money that was in the safe into the bag. She did so, he took the bag, pocketed the firearm and demanded to be taken to the owner of the Mercedes. Instead of doing so, she astutely led him to the classroom where the principal, Mr Harvey was teaching.
On seeing a male teacher the applicant seemed startled. He asked the principal if he was the owner of the parked Mercedes car and upon Mr Harvey saying that the car was not his the applicant angrily accused the secretary of misleading him. He asked the principal if he had a car and the principal said he had a Toyota Venture. At gunpoint the applicant demanded the keys of the Toyota and he went with Mr Harvey to the principal’s office where the keys of the car were given to him. He then compelled Mr Harvey to take him to the Toyota and to show him how to open and start the car with the remote control, after which he sped off in the vehicle.
Both the secretary and the school principal made good use of the ample opportunity they both had to observe their assailant and they each took not of his features, his build, his apparent age and his clothing. Two days later the secretary fortuitously saw him in Manzini in the company of other young men. Although he was no longer in the clothes that he had worn two days earlier, she immediately recognised him, hastily summoned a policeman and the applicant was arrested, charged and tried. When Mr Harvey, the principal, saw the applicant in court he unhesitatingly confirmed that this was the person who robbed him of the Toyota Venture. Although identifications made in court for the first time usually carry little weight, in this instance the opportunity that Mr Harvey had of observing his assailant at the time of the robbery was so favourable that the trial court was fully justified in relying upon his evidence. The secretary’s recognition of the applicant after the equally favourable opportunity she had of taking note of her assailant’s appearance is also totally convincing. I am therefore satisfied that the applicant was correctly convicted on counts 1 and 2 and that the consecutive sentences of 5 years on each count, backdated to the date of his arrest, are entirely appropriate.
The situation is different with regard to counts 3 and 4. It was the evidence of the investigating officer that the applicant, having been duly warned and cautioned, voluntarily took the police to the house in which he lives where he pointed out to them a loaded pistol and the place where he said he had burnt some cheques that were with the cash that was robbed from the secretary at the school. At that spot the Police found a partially burnt cheque.
The applicant testified that he was grievously tortured by the Police. He says he was repeatedly suffocated by means of a piece of rubber tubing being stretched over his mouth and nose to prevent him from breathing, in the course of which he was violently pushed to the ground on one occasion and sustained a cut above his left eye. One of the witnesses called by the Crown said that he saw a bleeding cut above the applicant’s left eye when the applicant was in police custody.
The applicant’s evidence which described the torture that he says he was subjected to reads well. It was very detailed, does not appear to be exaggerated and was consistent throughout. No separate investigation into the veracity of his evidence was conducted and in my view the finding is justified on the evidence that the applicant was in fact coerced into making the incriminating indications he did. To put it at its lowest, the Crown certainly failed to discharge the onus of proving that the indications were freely and voluntarily made.
This Court, per Browde J.A., with whom Melamet P. and Schreiner J.A. concurred, said the following in the case of Alfred Shekwa and Elijah Jubela Shongwe vs The King, Appeal No. CA. 21/1994:
“This approach to pointings out is not affected, in my opinion, by section 227 (2)
of the Criminal Procedure & Evidence Act which provides that:
“ Evidence that any fact or things discovered in consequence of the
pointing out of anything by the accused person or in consequence of
information given by him may be admitted notwithstanding that such
pointing out or information forms part of a confession or statement
which by law is not admissible against him.”
In dealing with the provisions of section 218 (2) of Act 51 of 1977 in South Africa (which
is in almost identical terms to section 227 (2) ) the Appellate Division in Sheehama’s case
“It is also a basic principle of our law that an accused cannot be forced to make
self-incriminating statements against his will and it is therefore inherently
improbable that the legislature, with a view to sound legal policy, would ever
have had the intention in section 218 (2) of Act 51 of 1977 to authorise evidence
of forced pointings out.”
I confidently believe that the same dictum regarding the legislature would be applicable
in this kingdom and consequently I am of the view that unless a pointing out is proved
to have been freely and voluntarily made it is inadmissible in evidence against an accused
person.”
The extract from Sheehama’s case that is quoted above is a translation of the passage at page 881C of the reported judgment which is in Afrikaans. I respectfully agree. Section 227 (2) makes it clear that in such cases evidence of the finding of articles by the police, and evidence of where such articles were found by the police, is admissible. What is not admissible is that the said articles were pointed out to the police by the accused. It follows in the present case that the evidence of the pistol having been pointed out by the applicant is inadmissible. There was therefore no admissible evidence that the applicant was ever in possession of the loaded pistol and his convictions and sentences under the Arms and Ammunitions Act on counts 3 and 4 must accordingly be set aside.
Accordingly leave to appeal is granted. The appeal against the convictions and sentences on counts 1 and 2 are confirmed, but the appeal against the convictions and sentences on counts 3 and 4 is allowed and those convictions and sentences are set aside.
C.E.L. BECK J.A.
I agree
J. BROWDE J.A.
I agree
ZIETSMAN J.A.
Delivered on this………….day if November 2002
