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    StatevsS.P.dewaniJudgment

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    3K tayangan86 halaman

    StatevsS P Dewanijudgment

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    eNCA.com
    StatevsS.P.dewaniJudgment

    Hak Cipta:

    © All Rights Reserved
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    1 IN THE HIGH COURT OF SOUTH AFRICA. (WESTERN CAPE DIVISION, CAPE TOWN) CASE NO. CC15/2014 In the matter between: THE STATE And SHRIEN PRAKASH DEWANI Accused oo JUDGMENT : 8 DECEMBER 2014 eo TRAVERSO, DJP 1 Atthe close ofthe case for the prosecution, Mr Van Zyl, forthe accused brought ‘an application for the accused's discharge in terms of section 174 of the Criminal Procedure Act, No 51 of 1977. [2] The accused was charged with the following offences: @ © © ‘s) CP) ‘conspiracy to commit the offences of kidnapping, robbery with aggravating creumstances and murder (count 1); kidnapping (count 2); robbery with aggravating circumstances (count 3); ‘murder (count 4); and ‘Obstructing the administration of justice (count 5). §3] In count 1 its speciicaly alleged that the accused conspired with Zola Tonga (Tongo"), Mziwamadoda Qwabe ("Qwabe") and Xolle Mngeni (‘Mngeni") to commit, the alleged offences: by entering into an agreement with Tengo, in terms of which Tong woul Procure the services of @ person or persons to do one or more or ll of the Tollowing 2.4 simulate a hijacking of Tongo's motor vehicle, 2.2 simulate a kidnapping and robbery of Tongo andthe accused: andlor 23° eftect the kinapping, robbery and murder of the deceased, Anni Dewan, ‘and in that, accorsing to the conspiracy agreement, the Accused would [rove payment to the perpatisors as well a5 to Tonge for the kadnapping, ‘obbery and murder of the deceased, Anni Dewan, 4} Counts 2to 4 contain the allegation that Tonge, Qwabe and Mngeni acted in the furtherance of a common purpose to kidnap the deceased, rob the deceased and kill the deceased. The other accomplice Monde Nbolombo was not charged as a co- conspirator 18} | fotiows tnt its theretore crucial for the State's case to prove that the accused entered into an alleged conspiracy agreement with Tongo. Falling such proof, he ‘accused cannot be convicted of any of the first four counts against him and ‘accordingly also not onthe fith count. ‘The legal position [6] Section 174 ofthe Criminal Procedure Act provides: "Ht tthe close ofthe case forthe prosecution at any tral, the cout iso he opinion that there is no evidence that the accused commited the offence refered ton the charge or any ffence of which he may be convicted on the charge, it may return @ serdict of not guity.” [71 tis weil established that “no evidence" does not mean no evidence at all, but ‘rather no evidence on which a reasonable cour, acting carefully, might convict." [8] The question whether a court should grant a discharge at this stage is one which entails a discretion by the trial court. It isa discretion which must, self-evidenty, be exercised judicial. [8] The judicial pronouncements on the manner in which the trial court must ‘exercise its discretion have over the years been contentious. | do not intend to give ® full historical overview and will confine myself to a brief reference to thase eases that helped to define the scope of the courts discretion in terms of section 174, [10] In Sv Shuping & Others, (supra), Hiemstra, CJ reviewed the case law history of ischarge applications and formulated the test as follows at 120 in fine to 121 A: “Atthe close ofthe State case, when discharge is considered, the fst question is: (ip |e there evidence on which © reasonable man might cont not (I) IS there & "easonable possibly thal the defence evidence might supplementthe State case? If the answer fo either question is yes. there should be no discharge and the accused should be placed on his defence. [Ry Soin 3825 AD 6 xy Herolt& thes 19562) SA 722 (Wh SvMpetha & Others 19838] 5A 262:5« Shaping & Others 198313} 139(), 5 usta 20012) SAGA (SCN), [11] The second part of the latter test did not always find favour In Sv Phuravhatha & Others, 1992 (2) SACR 644 (V), Du Tolt, AJ stated the following: “The presumption in favour of innocence, the fact thatthe onus resis on the State, as well a5 the dictates of justice in my view wil normally require an exercise ofthe iscretion under 8 174 in favour of an accused person where the State case is Virtually and basicaly non-existent. Strengthening or supplementation of a none ‘existent State case is @ physical impossibly” {12} Since the inception of our Constitutional order, confctng views arose as to Whether or not the Consitution has impacted on the test to be applied by a court i an application in terms of section 174. These decisions culminated in the Supreme Court of Appeal finaly decicing this issue in Sv Lubexa, 2001 (2) SACR 703 (SCAl, intr alia, 8 foows: "T18) have no doubt that an accused person (whether or not he is represented) i centile to be cischarged at the Possibly of a conviction other than If he enters the witness box and ineriminates himsel The faure to cischarge an accused in hose circumstances, if necessary ‘moro motu, is in my view a breach of the rights that are guaranteed by the Constitution and wil orcinariy \tste a conviction based exclusively on his sot 8€ ofthe case forthe prosecution if there is no inerminatory evidence, [19] The ight to be discharged at that stage of tial does not necessariy aise, in my vw, ftom considerations relating to the burden of proof (or its concomitant, the Presumption of innocence) or the right of silence or the right not to testify, but ‘arguably from a consideration tht is of more general appication. Cleary a person ‘cught not to be prosecuted in the absence ofa minimum of evidence upon which he ‘might be convicted, merely inthe expectation that at some stage he might incriminate 6 himse That 's recogysed by the common law principle that there should be easonable and probabh’ cause to beleve thatthe accused is gully of an offence before @ prosecution i tiated (Backenstrater v Roicher and Theunissen 1955 (1) SSA 129 (A) at 135C-€), and the constitutional protection afforded to dignity and Personal freedom (s 10 and s 12) seems to relnforce it. It ought to follow that if a Prosecution not o be commenced without that minimum of evidence, $0 too should ‘t cease when the evideres finally fats below that teshold, That wil pe-eminenty be 80 where the proseoition has exhausted the evidence and a conviction is no longer possible except by seltincrimination. A far tin, in my view, would ot that stage be stopped, for it threatens thereafter to intinge other constitutional rights Protected by 6 10 ands 12" [13] It has been held that the credibility of State witnesses at this stage of the Proceedings only play a very imited role. in $v. Mpetha (supra), Wiiamsan, J held t relevant evidence can only be ignored if “it is of such poor quality that no reasonable person could possibly accept it. [14] This sentiment was also echoed and expanded on by Kgomo, J in $ v Alot 2011 (2) SACR 437 (GS), who stated the following at 486 in fine to 487%: "1272] In $v Laviengwa 1996 (2) SACR 453 (W) the view was expressed thatthe Processes under + 174 translate inlo a statutory granted capacity to depart scretonaly, in cetin specific and tinted circumstances, from the usual couse, to ‘cutoff the tall fa supertuous process. Such @ capacty does nct detract from either te right to sience cr the protection against self-inimination. Hf an acqultal ows at ‘he end of the State case the opportunity or need to present evidence by the defence {als sway. lecherge a refuse, te accused stl nas the choice whether to testy OF nat. There Is no obligation on him to testily. Once this court rules that there is no Prima facie case against the accused, there also cannot be ary negative Consequences as @resut ofthe accused's silence in this context [273] | agree with the view that itis an exercise infty to lay down roid rules in ‘vance for an infinite variety cf factual situations which may or may not arise. Iti thus, in my view, 80 “unwise to attempt to banish issues of credit’ in the assessment of issues in terms of § 174 oro ‘confine judicial discretion to ‘musts’ or ‘rust nos’ [18] To therefore summarise the legal position regarding applications in terms of section 174: te) © © ‘An acoused person is ented lw be discharged at te close of the case for the ‘roseciton if there is no possibiliy of a conviction other than if he enters the: witness box and incriminates himself: In deciding whether an accused person is entitled to be discharged at the close of the State's case, the court may tak Into account the credibly ofthe State witnesses, even if only toa limited extent: Where the evidence of the State witnesses implicating the accused is of such Poor quality that it cannot safely relied upon, and there is accordinaly no credible evicence on record upon which a court, acting carefuly, may convict, ‘an application for discharge should be granted 16] Itis common cause thatthe only witness who could implicate the accused was. ‘Tonge (who wae an accomplice wilness), 7] itis tte that @ court should approach the evidence of an accomplice witness: Wwith caution The duty of the court in thie rogard has been described as tolows in Rex Noanena, 1948 (4) SA 399 (AD) at 405, “The cautious Court or jury wl often propery acqut in the absence of citer evidence ‘onnestng the accused with the crime, but no rule of law or practice request to do 50. What s required is that the tier of fact should warn himsel,o, if the trier is @ Jun, that t should be warmed, ofthe special danger of convicting onthe evidence of ‘an accomplice; for an accomplice is not merely a witness with @ possiie motive to {oles about an innocent accused but is Such a witness peculiarly equipped, by ‘easonof his inside knowledge of the crime, to convince the unwaty that ses are the teu. This special danger is not met by corroberation of the aciomplice in ‘materi respects nct implicating the accused, or by prot aliunde tha: the crime ‘charged was committed by someone; .. The risk that he willbe convicted. wil be ‘ecluced, and in the most salistactory way, there is corroboration implicating the accused” [8] Im Sv mmvabathi & Another, 1968 (2) SA 48 (A) at 50 G ~ 51 A, Potgieter, JA dealt with this question as follows: “is lear from the authors if corroboration was required it had, forthe purpose of {he so-called cautionary rule, to be corcboration implicating the accused and not ‘ere corroboration in a material respect or respect, PPoigieter, JA confirmed the view of Schreiner, JA in the Neanana case. [19] In $ vGentie, 2005 (1) SACR 420 (SCA) at 430, Cloete, JA in dealing with the ‘pproach to be followed by a court when itis faced with a situation where a court ‘should caution itself in analysing the evidence, ea the following: “It must be emphasised immediately that by corroboration i meant other evidence hich supports the evidence ofthe complainant, and hich renders the evidence of the accused less probable, onthe issues in dispute [201 In S v Scott-Crassley. 7008 (1) SACR 223 (SCA) at 294, the court stressed that: “Matters which are common cause between the Stale and the accused cannot Prove corroboration for mates in dispute — otherwise, for example, the fact that an ‘accused in a rape case confirmed that he had had sexual intercourse with the ‘complainant cou be taken as corroboration ofthe latter's version that he had done ‘0 without consent, whichis plainly absurd.” [21]. Therefore the images in the CCTV footage (to which Iwill fer in more detall later) depiting (2) The accused meeting with Tongo at the parking lot at the Cape Grace Hotel on Friday, 12 November 2010; ©) © ® fe) 0 ‘The accused being picked up by Tongo on Saturday moming, 13 November 2010 atthe Cape Grace Hotel; ‘The accused being dropped off again by Tonge later on that Saturday ‘morning atthe Cape Grace Hotel, ‘The accused and the deceased being picked up by Tongo on Saturday ‘evening at the Cape Grace Hotel ‘The accused talking to Tongo after the incident on Sunday, 14 November 2010; ‘The accused paving Tongo R1000,00 in the communications room on Tuesday, 16 November 2010; de not provide any corroboration fur the version of Tongo where it difers from that of the accused set out in his plea explanation, as none of these events are in issue. it is what was said during those events that isin iesue and for that there is only the version of Tonge. [22] The same applies to the telephone communication between the accused and Tonge, and betwoon Tonge end Muolombo and Gwabe. This telephone comm tunication does rt in itself corroborate what was said during those calls, it ‘merely confirms that communication took place. [23] Against this teyal background | wal now proceed to analyse the evidence: 234 24.4 Zola Tongo A the outset it neds to be repeated that Mr. Tongo isthe only witness who testified that the alleged conspiracy agreement was entered into with the accused and what the terms of the agreement were, It is clear that Me ‘Tongo, Mr. Qwabe and Mr, Mingen (and Mr. Mbolombo) acted in execution of 2 common purpose to commit at least he offences of kidnapping and robbery ‘nd possibly ala ether offences. The only ious to determine s wheter the evidence shows thatthe accused was part ofthat conspiracy. Evidence in chief Mr. Tongo testified that he was an executive tax driver and onthe day in question (12 November 2010) he was at Cape Town Intemational ‘Airport waiting for fares. He stated thatthe accused approached him and asked him where he could get transport to Town. Mr. Tongo responded that he could transport him to Town, and although there was a taxi renk to which he directed the accused, he old the accused that those taxis were generally more expensive, The accused informed 23.12 B13 23.14 2 him that he wanted to go to the Cape Grace Hotel and informed Mr. Tongo that he was not alone, and that his wie was with him. Mr Tongo testified that while he was wating he saw a “edy" come from inclde the airport towaids him. 16 common cause that this woman Was the deceased. "Mr. Tongo's car was parked on the lower level ofthe parking garage. On their way to the parking garage the deceased asked him why he was not parked where the other taxis were parked. He told her that he Aid not yet have a permit to park there. He testified that during the dive fom the sport tothe Cape Grace Hotel, he did al he could to ‘market himself and his services tothe couple, 'tis common cause that Mr. Tonge was ariving the Volkswagen Sharan in which the deceased's body was found. On the way to the Cape Grace Hotel Mr. Tongo told the couple about Cape Town's beauty, about the squatter camps and the importance of the township Gupulethu whichis right next to the squatter camps. He told them about the welt-known tavern KwaMzol in Gugulethu, He also told them about other tourist attractions such as the penguins at Boulders Beach. Mr. Tongo was hoping that the Dewanis would use 23.15 23.16 2.17 23.18 his services while they were in Cape Town. Mr. Tongo testified that en. ‘route there was very litle interaction between the couple and himself Upon their ariva atthe Cape Grace Hotel the deceased accompanied 2 porter with their luggage into the reception area while the accused Femained behind at the car in order to pay Mr. Tongo his fare. At that stage Mr. Tongo gave him one of his business cards The accused then informed him that he has a job for him and that he must wait for him in the parking area of the hotel. Mr. Tongo went 1 atk his car inthe parking area and waited, ‘The accused then went inside the hotel to check in and after a while ‘etumed and got into Mr. Tongo's vehicle, The accused then informed him that the job that he had for Me. Tongo would make his business TOW because he, the accused, is fom oversaas and can refer other travelers to him who in tur would refer futher travellers to him. ‘Shonly thereafter the accused told him that the real job that he, the ‘accused, had for Mr. Tongo was that he wanted somebody to be “removed from the eyes’. When Mr. Tongo asked him to explain what hhe meant, he stated that he wanted somebody to be kiled. Mr. Tongo 23.19 231.19 » {old the accused that he was not involved in such things, but informed him that he knew somebody who ives in the location who might know ‘about people whe would be prepared to do i. Accordirg to Mr. Tongo he was at all ies informed by the accused that it was his “business Partner" who would be arivng on the following day, that he wanted killed. Mr. Tongo knew that the person tobe killed was « woman. Mr. Tongo and the accused parted company on the basis that if Mr Tongo should find somebody who would be prepared to do the jo, he would contact the accused and inform him accordingly. The two gentiemen exchanged phone numbers. They also discussed the ‘remuneration that would be paid forthe job and the accused explained that he would be prepared to pay an amount of R15 000,00 when the job was done. Over and above the R15.000,00, Mr. Tengo would Tecsive an amount of RS 000,00. The accused also stated that he had dollars and could pay in dollars. Mr. Tongo thereafter left and immediately went to Centuy City, o the Protea Colloseum Hotel, where he met his frend, Mr. Monde: Mbolomibe, who worked as a receptionist at the hotel, Mr. Tongo erplained thatthe reason why he approached Mr. Mboiombo, was because Mr. Mbclombo lives inthe location and he “knows everyting ‘that happens inthe location. ... I realised that there must be things that 23.41.11 23.412 1s he is aware of, things that are happenirg in the locations, things that | ‘am not aware oF" Mr Tongo explained to Mr. Mclombo what he wanted. Mr. Mbolomibo immediately informed him that there is young man that he knows who might be prepared to do the job. Mr. Mbolombo therefore took his Phone and went outside wth Mr. Tongo where they phoned this person {and explained to him about the job. itis common cause thatthe person that he phoned was Mr. Qwabe. Mr. Tengo heard Mr. Mbolombo @%plain to Mi. Qwabe what he, Mr. Tongo, had explained to Mr Mbolombo and asked whether it would bein order ifthe person who ‘mandated this deal would make payment in dolars. Mr. Qwabe stated that ‘they’ oid not want dolars, it had to be South African rands. Mr Qwabe stated that he still had to contact a frend. Mr. Tongo testifed that while they were outside, he tock the porticulars of this person from Mr. Mbolombe, He could however net remember his name and ‘accordingly listed him in his contact list on his phone under “H’. Me ‘Tongo phoned Mr. Qwabe at a later stage in order to find out “how things were going’. Mr. Qwabe informed him that things were going just fine, but that he was stil going to meet another man and he is “promising! Mr, Tongo tified that he spoke to the accused later that evening bbecause the accused wanted to make sure that he had found the 23443 231.14 6 People who would “do the job”. He stated that, upon informing the ‘accused about the fact thatthe assailants would not want to be paid in

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