Browde JA:
The appellant was charged in the High Court on two counts. On count one it was alleged by the Crown that on the 24th August 1997 at Sigangeni the appellant murdered Bhutana Shabangu. On count two the allegation in the indictment is that on the 25th August 1997 at the same place the appellant robbed Phephile Shabangu of E50.00. He was found guilty on both counts and sentenced
to eight years’ imprisonment on count one and four years on count two which was to run concurrently with the sentence on count
one. The appellant has appealed against both the convictions and the sentences.
The record of the trial in the High Court, upon which we are called to decide the appeal, is so poorly prepared and so unreliable
as a purported transcript of the proceedings in that court that it can fairly be said that it denies the appellant his right of appeal.
The preparation of the record is not the duty of the appellant and he should therefore not be prejudiced by the slipshod preparation
of the record nor, if so be the case, by the incompetence of the Secretarial staff or interpreter or both who were involved in what
is intended to pass for a transcript of the court proceedings.
As random examples illustrating the nonsense with which this Court was faced:
Page 70 (question by Crown counsel)
“CC:
Which is correct, which version do you want the court to believe, now you have broken the burglar,
at the first time you were arrested and your sisters were making breakfast. They just took you to the police station and that they
tortured you, interrogated you and they came back, now you have said one of the officers found this gun, Now which is the correct
version?”
Page 86 (question by Crown counsel)
“CC:
Mahlalela’s statement to say nothing in favour of yourself nothing you didn’t even say
to him that look I was asleep and now you have said that the other two ladies who slept in the same house and infact you needed to
pass through their room for you to gain access to the compound of your house, did you tell those ladies in front of Mahlalela why
did you vote for your sisters that look I was here the last night, did you anything like that?”
I pause here to observe that if that properly reflects the language used by Crown counsel, which I doubt, one can hardly expect an
intelligible answer – which he did not get.
Page 145 (this passage purports to be a submission made by Crown counsel)
“and the Shabangus are not also aware of any blood between themselves and the accused, so why the sister of the deceased simply flames
up a logo village boy in favour of the Uri of the perpetrator of the offence if he was indulge should say he was indulge because
she should be warned the rear perpetrator of her brother’s death brought to book rather take anybody else in the village and
say it is them”.
I simply do not accept that that “excerpt” properly reflects what Crown counsel said. One further example would suffice
since, as I have indicated, the record is riddled with similar incomprehensible passages. I refer to page 156 – 157 (this time
the purported words of defence counsel)
“DC:
That Your Lordship in-fact what Mr. Ngarua said is supportive to the defence cast in that it is
a doubt itself whether or not he could have moved out. Infact the accused person Your Lordship that evidence was confirmed by DW2
as I have started, even though she said that she was very tired, both of them. They have worked all day long cutting grass or the
accused person was tired too after having cut that particular day, pretty tired Your Lordship. They went to bed as to whether or
not he did at midnight sneaked out and then just before dawn sneaked in that is a doubt, its unknown, there is no evidence to prove
that infact he did sneaked out and that doubt must be in favour of the accused for all intents and purposes. Your Lordship I can’t
take the defence case any further”.
It was of course unnecessary to transcribe counsel’s arguments. The fact that it was done so shockingly undermines all faith
that the record of the actual evidence is reliable.
Apart from the fact that the typist, the interpreter or both are hopelessly inefficient, the record is in other respects defective.
There is no record of the charges having been put to the appellant nor his plea. Exhibits which were handed in were not before us
and the post- mortem report is partly illegible as are the medical reports. Often it is obvious that there are missing passages of
evidence between the end of one page and the commencement of the next. Of the numerous instances two will suffice namely:-
Page 12 ends with the following: (Question by the defence counsel)
“DC:
Is that he was wearing: long trouser and a short on top of the long trouser and T. shirt and a jacket
on top of (page 13 commences as follows:)
house?”
The answer given by the witness is “Correct”. At the foot of page 23, defence counsel is recorded having asked as follows:
“DC:
To your home area, was it not a usual thing that you will see (then on top of page 24) one on top
of it”.
There are many cases of portions of pages being repeated on the following page for no apparent reason and in some instances, to make
matters worse, the obvious repetition is not quite in the same words. This is most disquieting since it makes it clear that the record
cannot be a true reflection of the proceedings in the court a quo. As I have said this has the effect of denying the appellant his
right of appeal – which was readily and properly conceded by Crown counsel Mr. Magagula. On this basis alone, therefore, the
appeal should be upheld and the convictions and sentences set aside.
Even if I were wrong in basing my conclusion on the state of the record alone, the facts that can be gleaned from the “transcript”
do not justify the conviction of the appellant. At about midnight, the complainant in the robbery charge was asleep in the homestead
of one Khanyisile Shabangu, when they were woken up by the door being opened. A person entered who was later identified by the complainant
as being the appellant. In this she was corroborated by Khanyisile Shabangu. Because it was denied by the appellant that it was he
who entered the homestead, the evidence of the two women must be scrutinized carefully. They contradicted one another in a number
of respects. One said they had been together that afternoon at the soccer field and saw the appellant and one Mthunti there but the
other said she had not seen the appellant earlier during the day. The complainant identified him by his voice and his clothing which
she described as follows (and I give the ipsissima verba of the record):-
“DC:
Only thing that you heard was the voice, is that correct?
PW1:
And his clothing, and the Police found him still wearing those.
DC:
Can you be able to tell the court what exactly he was wearing?
PW1:
He was wearing a long pair of trousers, on the long pair of trousers he was also wearing a pair of short.
Underneath he was wearing a T. Shirt and I did see its colour and he was also wearing a slamba jacket too.
JUDGE:
What about the colours of these things?
PW1:
The jacket was green but it appeared to be won out.
DC:
What was the colour of the long trousers?
PW1:
I did not see the colour of the long trousers but the pair of short was grayish but also won out.
DC:
Had you mention gumboots, is that correct?
PW1:
Yes, It appeared to be army boots.
DC:
Now, is that he was wearing; long trouser and a short on top of that long trouser and a T. Shirt
and a jacket on top of house?
PW1:
Correct.
DC:
You have opportunity previously to know the accused?
PW1:
Correct.
DC:
And you knew some of this clothes?
PW1:
Yes I knew the clothes because most of the time he was wearing them”.
The witness Shabangu, on the other hand, said:-
“DC:
What was he wearing on his head?
PW2:
A cooper-hat.
DC:
Were you able to see the colour of the cooper?
PW2:
I did not see it.
DC:
What about the other dresses.
PW2:
I could not see the things except the short which was whitish and a jacket”.
The Detective Sergeant who arrested the appellant described his clothes (in terms contradictory to those of the complainant) as follows:-
“PW3:
When the accused was arrested my Lord he was wearing a jean black trouser with stripes and he was wearing
a black pair of shoes. (my emphasis)
Judge: You are saying he was wearing a short white trouser on top of what?
PW3: On top of the black trouser.
Judge: And then what about the jean now?
PW3: The jean was on top my Lord.
Judge: It was a what, jacket or shirt?
PW3: It was a jacket.
Judge: Was he wearing any shoes?
PW3: Yes my Lord.
Judge: Can you describe them?
PW3: He was wearing a brown pair of boots. (my emphasis)
CC: Which type of boots were they?
PW3: I think it’s the boots that tights on the ankle”.
If this has been correctly recorded, the trial Judge improperly led the Crown witness as to facts material to identification, and
subsequently overlooked the glaring contradiction in the police officer’s evidence when, in his judgment, he said:-
“The witness (Sergeant) told the court that when he arrested the accused he was wearing a white trouser which was short on top of a
long black pair of trousers. He was also wearing army boots which were brown in colour. It must be noted that PW1 and PW2 also mentioned
that the accused was wearing long boots when he broke into their sleeping hut.”
A further strange observation from the learned Judge was the following. He stated that:-
“He (appellant) was arrested by Mahlalela for no apparent reason and charged him with this offence. He said at the police station he
was tortured by Mahlalela with a tube and ordered to admit killing the deceased. I must say, at this juncture this came as a complete
surprise the accused was giving evidence in chief, it was not suggested to PW3 Sergeant Mahlalela in cross-examination by Mr. Mdluli
for the defence.”
This overlooks the fact that it had indeed been put to the police officer that the accused had been assaulted to induce him to talk,
although without detail as to the nature of the assault.
The evidence regarding the death of the deceased led to a serious doubt regarding who fired the fatal shot. No firearm was found which
could have been the weapon used and what was found in possession of the appellant were parts of a “contraption” regarding
which there was no evidence that it was capable of being used to lethal effect.
There were two other men who ran away in the darkness at the time the shot was being fired and it is, in the circumstances, reasonably
possible, if not probable that it was not the appellant who was responsible for firing the fatal shot.
The appeal is upheld and the convictions and sentences are set aside.
J. BROWDE JA
I AGREE
:
L. VAN DEN HEEVER JA
I AGREE
:
D.L.L. SHEARER JA
Delivered on this day of June 2001.
