S v Mzizi (CC 7/2001) [2007] ZANWHC 33 (19 July 2007)

CC 7/2001

In the matter between:

GUGULETHU EDMUND

MZIZI APPLICANT

and

THE

STATE RESPONDENT

___________

JUDGEMENT

LEEUW J:

Introduction:

[1] This is an application by the Applicant in terms of section 317 of the Criminal Procedure Act No 51 of 1977 (The Act). There is also an application for condonation for the late filing of this application in view of the fact that the Applicant was convicted and sentenced on the 6 February 2001.

Background Information

[2] The Applicant was convicted of murder and sentenced to thirty (30) years imprisonment. He applied for leave to appeal on 14 March 2003 which application I dismissed.

[3] There was no petition for leave to appeal to the Supreme Court of Appeal. The reason therefor, according to the affidavit of the Applicant in the condonation application, was the following:

“… I no longer had confidence in Advocate Ms Benjamin who applied for leave to appeal. I dismissed both Advocates Kneen and Benjamin. I maintain that Advocate Kneen handled the matter completely incompletely, as is apparent from the trial record, and as such I do not believe that my trial was fair, and I was seriously prejudiced by the way he handled my matter. Apart from his incompetent handling of the case he did not properly consult with me and take full instructions, so as he was not properly prepared for the case. I am a non-professional person with no knowledge of law or legal procedure, and I did not appreciate this at the time. Indeed it was only after I had discussed it on the basis of the transcription of the record, that is now available, that I realized how poorly my case was handled, and how at fault Mr Kneen was in not arranging to take proper and full instructions from me. Not only did this severely prejudice me in regard to the presentation of my case it also prejudiced in cross examination and in the judgment of the Court inter alia because I was continually confronted by the failure of Mr Kneen to put significant parts of my story to the State witnesses. This ultimately was attributable to the failure of Mr Kneen to arrange consultations to take full and proper instructions from me. I also now with respect believe that the Court should have

intervened because reading the record it is clear that Mr Kneen’s handling of the case was ineffective and incompetent. After discussing and considering the matter on the basis of the transcription, I am convinced that it was the duty of the Court to intervene in the interests of justice, when it became clear that Mr Kneen’s handling of the matter was ineffective and incompetent. My choice of Counsel now is Advocate Shapiro. Unfortunately the Counsel of my choice Advocate Shapiro informed us that he was not available at that time, and he informed us that he would only be available at that time, and he informed us that he would only be available in November 2006. I was not prepared to use any other Counsel. It is my Constitutional right to use the Counsel whom I wish to use. I must however place on record that Advocate Shapiro from the outset himself advised us to use another Counsel, as he warned us that it may prejudice my Application and Petition if we waited so long. However as I had no confidence in anyone else, and my case was so poorly handled in Court, and I understand that it is my constitutional right to have the Advocate of my choice, I decided to wait for him.”

[4] The application in terms of section 317 of the Act was filed with the Registrar of this Court on 26 January 2007 and the application was heard on the 2 March 2007.

The Grounds for the application

[5] The Applicant’s grounds for a Special Entry as amended can be summarized as follows:

That the evidence of Sergeant Lepedi to the effect that Captain Tatisi, the deceased in this matter, uttered the words “That’s Gugu,” when he was dying was hearsay and which evidence was “elicited by way of a leading question that the witness Cebisa (the Accused’s ex-girlfriend) testified that the accused was also commonly known as Gugu;”

That the Court elicited the following evidence from Inspector Mogotsi which is also hearsay evidence: “Now when you went to investigate and went to the scene, had any other persons, other incidents been reported of somebody having been shot on that scene except for that of the deceased in this matter?” And further that Inspector Mogotsi was not qualified to testify to such facts and that his response was highly prejudicial to the Applicant’s case;

That the Court was not justified to take judicial notice of various areas including streets where the deceased allegedly persued his attacker and where the deceased was allegedly shot;

That the Court committed an injustice by allowing the then counsel for the Applicant Mr Kneen, to continue representing the Applicant at the trial when he was obviously incompetent and inefficient to the prejudice of the Applicant. The details thereof will be addressed later in my judgement.

[6] Section 317 of the Act provides that:

“if an accused, the Director of Public Prosecutions or a prosecutor feels aggrieved by the court a quo’s designation of a full court as a court of appeal, he or she may-by way of a petition to the President of the Supreme Court of Appeal-apply for the setting aside of a judge’s or a court’s designation of a full court as a court of appeal. In terms of s 315 (2) (c) read with s 316 (II) the application is considered in chambers by two judges of the Supreme Court of Appeal. If they are also of the opinion that the questions of law or of fact which relate to the appeal do not require the attention of the Supreme Court of Appeal, they may order that the appeal be heard by a full court. For the same reason the two judges of the Supreme Court of Appeal who attended to a petition for leave to appeal in terms of s 316 (8), after an application for leave had been refused by the court a quo, may designate a full court as the court of appeal. If the judges differ in opinion the petition will also be considered in chambers by the president of the Supreme Court of Appeal or another judge of appeal designated by the president of the Supreme Court of Appeal. The decision of the majority of the three judges serves as the decision of all three judges.

Other relevant provisions: s 316, particularly sub-ss (1), (8), (9), (10), (11), (12), (13), (14) and (15).”

[7] In terms of this section the Court must make an entry unless in its opinion it is satisfied that the application for a Special Entry is not made bona fide or absurd or that the granting of the application would be an abuse of the process of the Court.

I will proceed to deal with the grounds raised;

Is the evidence of Sergeant Lepedi hearsay?

[8] Sergeant Lepedi testified in his evidence in chief that he was in the company of Captain Tatisi (Tatisi) when they were chasing after a person who was unknown to him (Seargeant Lepedi). He handed over his fire-arm to Tatisi, whilst they were running and Tatisi fired several warning shots at the person they were persuing.

[9] The person being chased, stopped and raised his left hand with his other hand in his trouser pocket, as if he was surrendering. This person was under a tree next to the Assemblies of God Church. It was dark.

[10] A shot was fired by this unknown person and it hit Tatisi who fell to the ground. The unknown person ran away.

[11] Sergeant Lepedi then attended to Tatisi who was fatally injured. Arrangements were made to convey him to hospital in a police vehicle that was passing nearby. As he was being carried into the vehicle, Tatisi uttered the words “that’s Gugu”. At that stage he did not understand the meaning of those words until at a later stage when he discovered that a person by the name of Gugulethu had escaped from the police cells under a false name. Tatisi was certified dead on arrival at the hospital.

[12] The utterance of Tatisi “that’s Gugu” can be related to what was said by Cebisa, the Applicant’s ex-girlfriend, in her evidence in chief that the Applicant is known as Gugu.

[13] Cebisa said the following in her evidence in chief when she was led by the State Advocate on how she knew the Applicant:

“Yes where did you meet him? – I went to his parental home. I went into the house and his mother then told me that Gugu is at the next-door neighbour’s house and he is calling me.

Before you proceed. Now you say Gugu, she said Gugu is calling from the neighbours. Is this Gugu the name he’s commonly known as, or what’s the position? – Yes he is commonly known by that name.”

[14] The Applicant, when he testified under oath, confirmed that “most people around Mmabatho cannot pronounce the name Gugulethu and that’s why they resort to the name Gugu.”

[15] It can therefore not be said that the Applicant was prejudiced by evidence which he admitted to be the truth, namely that he is known as Gugu within the Mmabatho community.

[16] With regard to whether or not a leading question was put to Inspector Mogotsi when he said that he knew the deceased as “Titus,” the following was put to Inspector Mogotsi during his evidence in chief:

“Do you know of the name Titus? – Yes his full names are Moses Gopolang Tatisi ---- but he was commonly known as Titus.”

[17] It is not clear from the Notice of Motion as well as from Counsel for the Applicant’s Advocate Shapiro’s argument as to how the admission of this evidence is “unfair,” and further as to how it prejudiced the Applicant with reference to Cebisa’s evidence with regard to the name of Titus or Tatisi. But I find no fault in the question asked by the State Advocate.

Did the Court act unfairly and irregularly and unjustly by enquiring whether or not there was another shooting incident in the vicinity or scene where the deceased was shot?

[18] Mr Shapiro argued that Inspector Mogotsi was not qualified to testify on this issue in the sense that he was not in “charge of the registers of the police station covering that area at the relevant time or indeed of having any such special knowledge at the relevant time.”

[19] The above question was asked based on the fact that Inspector Mogotsi testified, from the beginning that he was in the “murder and robbery unit” stationed at Mmabatho.

[20] Furthermore, the purpose of this question was to establish whether the inspector dealt with this particular case only on that particular day. This was further to establish whether or not he was confusing the victim Tatisi or Titus with any other person who could have been shot at that scene, especially in view of the fact that he only went to the scene on the following day after the deceased was shot.

[21] I cannot see how this fact would affect the outcome of this case because the Applicant denies that he was at the scene of the crime and further that it is an undisputable fact that the deceased was shot at the scene which was visited by Inspector Mogotsi. I find this ground to be frivolous and of no substance.

Was it irregular for the Court to take judicial notice of the various areas where the deceased was allegedly attacked?

[22] Mr Shapiro argued that the fact that the Court took note of the fact that the areas referred to by the State witnesses were well-known to the Court, was unfair and irregular, and goes further to state that the Court acted “irregularly and was not justified in taking judicial notice of various areas including streets where the deceased allegedly pursued his attacker----“

[23] There was never a suggestion during the trial that the areas were not known neither by the Applicant nor the State witnesses. The Court also knows, as a fact that the areas referred to are close to each other. This fact was not in dispute and would not have had an effect to the Applicant’s case in view of the fact that his plea was an alibi.

[24] Mr Shapiro just made a bold submission to the effect that the admission of this evidence was “crucial to the finding that the accused was guilty beyond reasonable doubt and therefore it fundamentally taints the judgement ….” He did not elaborate further with regard to how it would in all probably prejudice the Applicant in the circumstance. I find no substance in this submission

Was Mr Kneen incompetent?

[25] Mr Shapiro submitted that Mr Kneen was incompetent in representing the Applicant in that:

No attempt was made to obtain or lead a handwriting expert in respect of a diary entry of Cebisa in which she threatened to see to his downfall;

He did not object to evidence unfairly or irregularity admitted as above;

That in the light of the accused’s statement he was not adequately consulted by Mr Kneen before or during the trial;

No attempt was made to lead evidence that the name “Gugu” and “Titus” were extremely common names in the area and in the country;

No attempt was made to consult with or call as a witness the mother of the accused whose evidence was relevant and was willing and able to give evidence.

[26] With regard to the issues raised above, Applicant does not explain in his affidavit as to why his mother was not called to testify and further as to why he did not produce his diary at the hearing of his trial. Applicant does not suggest that attempts were made to persuade Mr Kneen to produce this evidence and that his request was rejected by Mr Kneen.

[27] There is no substance in the submission that the names “Titus” and “Gugu” are extremely common in this area and in the country as Applicant does not lay any basis therefor.

[28] As far as the issues raised above, Mr Kneen cross-examined on the dying declaration of Tatisi, on whether or not “Titus” is a common name and on the allegation that Cebisa and the Applicant were not in good terms, which all seemed to have been instructions given to him by the Applicant. I had no reason or basis to doubt the competence or adequacy of Mr Kneen as a qualified Advocate. There is no substance in these submissions.

[29] I find that of all the grounds raised for the purpose of the application for a special entry, the issue that is arguable is whether or not the dying declaration of the deceased Tatisi should have been admissible in the circumstances of this case.

[30] Section 3 (1) (c) of the Law of Evidence Amendment Act No 45 of 1988 (the “Evidence Amendment Act”) provides that:

“Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless –

(a)

(b)

(c) the Court having regard to –

(i) the nature of the proceedings;

(ii) the nature of the evidence;

(iii) the purpose for which the evidence is tendered;

(iv) the probative value of the evidence;

(v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;

(vi) any prejudice to a party which the admission of such evidence might entail; and

(vii) any other factor which should in the opinion of the court be taken into account is of the opinion that such evidence should be admitted in the interests of justice.”

[31] In S v Ramavhale 1996 (1) SACR 639 (A) at 648 a – b, Schutz JA stated that “an accused person usually has enough to content with without expecting him also to engage in mortal combat with the absent witness.” He went further at 649 d – e to state that “the Court should hesitate long in admitting or relying on hearing evidence which plays a decisive or even significant part in convicting an accused, unless there are compelling justifications for doing so.”

[32] But in the case of S v Molimi & Another [2006] ZASCA 43; 2006 (2) SACR 8 (SCA) at 17 e – g, the Court held the view that the probative value of hearsay statements may be confirmed by the corroboration of the evidence of other reliable witnesses. See also S v Ndlhovu & Others 2002 (2) SACR 325 (SCA) and S v Shaik & Others [2006] ZASCA 105; 2007 (1) SA 240 (SCA).

[33] In the present application, the Court accepted the evidence of Sergeant Mogwere to the affect that on the 10 December 1998, he was sitting on the lawn at the gate of the Mmabatho Police Station, when he saw the Applicant go past the gate. At that stage he was thirty three (33) meters away from the Applicant. The place was adequately illuminated through what is usually called an “appollo” light, or street lamps.

[34] The Applicant was well-known to him. He saw him regularly in the cells, he also identified him by his clothes which were “light coloured” as well as his hairstyle which was shaven on the sides. He knew that the Applicant was commonly known as Gugu. When he noticed the Applicant passing at the gate of the police station, he saw Captain Tatisi, assisted by Sergeant Lepedi, chasing after him (the Applicant). Captain Tatisi was the investigating officer in the case of escaping from lawful custody against the Applicant. I found that the Applicant was positively identified by Sergeant Mogwere shortly before Captain Tatisi was shot.

[35] When Tatisi was shot, he made a spontaneous statement to Lepedi, which tended to point or identified at the person they were pursuing.

[36] The Applicant later confessed to Cebisi that he shot Tatisi at the vicinity where the deceased was killed.

[37] This corroborative evidence, coupled, with the fact that the Applicant was not a credible witness, led me to admit the hearsay evidence of Lepedi, with regard to what the deceased (Tatisi) said to him after he was shot.

[38] I would, nevertheless grant the Applicant the benefit of the doubt and make a Special Entry so as to allow another Court to determine whether or not the statement, “that’s Gugu” allegedly uttered by the deceased, Tatisi, before he died, was hearsay and consequently inadmissible.

[39] I accordingly find that there is no merit in respect of the other grounds raised in this application but do allow a Special Entry in terms of section 317 of the Act which is to the following effect:

“The admission of the Statement “That’s Gugu” uttered by the deceased Captain Tatisi after he was shot and before he died on the 10 December 1998, is hearsay which is inadmissible and that the Court ought not to have admitted it as evidence.”

[40] The application for condonation of the late filing of the application in terms of section 317 of the Act is granted.

________

M

M LEEUW

JUDGE

OF THE HIGH COURT

Appearances:

For the Applicant : Adv Shapiro

For the Respondent : Adv Maema

Attorneys for the applicant: Ester Resnik

Between 6-8 Klip Street- observatory, Johannesburg 2198

Ref Cell : 0824413078, Fax: 011-8826615

Mafikeng Correspondent: Messrs Magabane-Attorneys

Suite 4 Totobola Building, Station Rd. Mafikeng

Date of hearing : 2 March 2007

Date of judgement : 19 July 2007