SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

CASE NO: 543/2013
Reportable

In the matter between:

TAKALANI DAVID MALIGA                                                                        APPELLANT

and

THE STATE                                                                                             RESPONDENT

Neutral citation:   Maliga v The State (543/13) [2014] ZASCA 161 (01 October 2014).

Coram:
Bosielo, Pillay JJA et Schoeman AJA

Heard:
11 September 2014
Delivered:
01 October 2014

Summary:
Murder – Inadmissible statements admitted – Relied upon to dismiss
application for discharge after State‟s case closed – Appellant lured into testifying
because of that – Convicted – But for inadmissible statements application for discharge
ought to have been granted – Conviction and sentence set aside.
Trial – Without forgoing objectivity, presiding officers are obliged to manage proceedings
in order to achieve a fair and just conclusion – S 35 of the Constitution of South Africa,
1996 obliges all officers of the court to contribute to the proper administration of justice –
Presiding officer obliged to discharge an accused before he testifies if State has not
made out a prima facie case for him to answer, whether represented or not.

ORDER

On appeal from:
Limpopo High Court, Thohoyandou (Lukoto J sitting as court of first
instance)

1 The appeal is allowed and the conviction and sentence set aside.
2 The registrar of this court is directed to send a copy of this judgment to:
(a) The National Director of Public Prosecutions, Pretoria;
(b) The Director of Public Prosecutions, Thohoyandou; and
(c) Legal Aid South Africa, Thohoyandou.

JUDGMENT

Pillay JA (Bosielo JA and Schoeman AJA Concurring)

[1] The appellant and Eunice Matodzi Maliga (the deceased) were husband and wife.
On 18 February 2000, at about 9 am, the deceased was fatally wounded by a
gunshot during a domestic argument between the two of them. They were alone at
their home at Tshino Residential Area, in the District of Vuwani. The appellant was
subsequently charged with murder in the High Court of South Africa, Venda
Provincial Division on 19 January 2000, before Lukoto J. He was convicted of
murder and sentenced to 48 years‟ imprisonment. The appeal is with the leave of
the court below and is directed at both conviction and sentence.

[2] At the time of the incident, the appellant had been employed by the South African
National Defence Force for approximately 10 years. He was stationed at
Potchefstroom under 12 SAI Battalion. He used to commute home regularly. There
had been tension between them over some period relating to the appellant‟s

suspicions as to the legitimacy of their last born child and also maintenance for the
deceased and the children. On 17 February 2000, the appellant arrived home
earlier than anticipated. The next morning an argument concerning their problems
ensued during which the deceased sustained a fatal gunshot wound.

[3] The appellant was charged with her murder and pleaded not guilty. His legal
representative tendered a plea explanation in terms of s 115 of the Criminal
Procedure Act 51 of 1977 (the Act). Briefly, he stated that in an attempt to relieve
her of possession of his firearm which she had taken from him, a struggle ensued
during which a shot was discharged as a result of which the deceased died.

[4] The State called approximately nine witnesses. Having perused the record, it is in
my view, not necessary to deal with their evidence extensively as it does not
implicate the appellant and in the light of the approach adopted in this appeal.

[5] Ndulafe Matamela testified that she heard a female calling for help and screaming
that she was dying. The call came from the appellant‟s home and she proceeded
towards it. Before she got there she heard a gunshot. She then went to call the
police.

[6] Kelvin Thambulani Maliga, the appellant‟s brother, testified that he had earlier
visited the appellant and on his way back there later that morning, he overheard
talk in the street about a shooting at the appellant‟s home. He went there and met
the appellant who told him a gunshot had been discharged. Shortly after he left the
appellant, he approached the police who asked him what had happened. He
directed them to the appellant‟s home.

[7] The investigating officer, Sergeant Tshiwane, testified that on 18 February 2000,
after receiving a report, he went to the appellant‟s home in the company of
Sergeant Mudau. On their arrival, they met Kelvin Maliga outside. Kelvin allegedly
reported to them that the appellant had said that he had shot the deceased. They
then went to the appellant‟s home and Mudau asked him what had happened. He
allegedly responded that he had shot his wife during an argument. The appellant
was then arrested. Their search of the inside of the house produced a single

empty cartridge. The State also called Inspector Shabane Mudau. He confirmed
most of what Sergeant Tshiwane had testified. He added that he thought that the
appellant would escape and since he did not have handcuffs, he bound the
appellant with wire and rope on arresting him and took him to the police station.

[8] Inspector Shadrack Freddy Masiwelele testified that a day or two after the
appellant‟s arrest, he asked the appellant if he could take down a warning
statement from him. He said that he had with him a set of the usual documents
required for recording a warning statement. It contained certain formal questions
to be asked of the deponent and provision for the responses thereto prior to
dealing with the actual body of the proposed statement. Inspector Masiwelele
testified that the appellant then willingly made a statement about how his wife had
died. These formalities are designed to generally protect the rights of the
deponent, including his or her constitutional rights in particular against self-
incrimination. I will refer to these presently.

[9] Mr Poodhun who appeared for the State in the trial sought to have the statement
admitted as evidence in the court below. The document, headed „warning
statement‟ was admitted provisionally as a warning statement and marked Exhibit
„D‟. It is necessary however to refer to important aspects in exhibit „D‟.

[10] Firstly, one of the formal questions read together with the appellant‟s answer
thereto is as follows:

„2.3 Question: You have the right to be assisted by a legal representative of your choice.
Do you wish to exercise this right, and would you like to contact him? Who is this person?
Answer: To be represented by the lawyers from Law Clinic.‟
It is clear from paragraph 2.3 of the statement that the appellant, after being
alerted to his right to representation had elected to be represented by a „lawyer
from the law clinic‟. This was in compliance with s 35 of the Constitution of the
Republic of South Africa, 1996 (the Constitution). This request was ignored and
Masiwelele proceeded to take down a confession whilst the appellant was
unrepresented. This in itself would render the statement inadmissible.
Secondly, in the body of the statement, the appellant allegedly stated:
„When I came back home I enquired from her about the way in which the money was . . .

There was no sufficient the (sic) information received from her.
Since that she could not even respect me and that I could see that she was having an
extra marital status with [another] man I then became aggressive and produced my
personal firearm and shot her once on her person. I noticed that she was left in a pool of
blood.‟
This latter quote from the body of the statement is clearly an unambiguous
admission of guilt to the charge and is therefore a confession as envisaged by
s 217(1)(a) of the Act.

[11] The State then closed its case after which the appellant brought an application in
terms of s 174 of the Act for his discharge. The application was dismissed on the
basis of what was stated in the appellant‟s plea explanation; what he allegedly
said to the policeman when he was arrested; on the evidence of Matamela to the
effect that the deceased was saying that she was dying and that she thereafter
heard a shot from the house and finally the contents of what Lukoto J referred to
as a statement to which the appellant deposed to freely and voluntarily.

[12] The evidence of Tshiwane and Mudau that the appellant had shot his wife during
an argument was illicited by them without warning him of his constitutional rights
as envisaged in s 35 of the Constitution. It is therefore inadmissible. Also whatever
Kelvin said to them regarding what the appellant might have said to him about the
latter‟s alleged utterances is rendered inadmissible because Kelvin did not confirm
that under oath. Furthermore s 217(1)(a) stipulates that a confession made to a
peace officer other than to one referred to in s 334 (a commissioned officer), shall
not be admissible, unless confirmed and reduced to writing in the presence of a
magistrate or justice. His confession was not confirmed or reduced to writing in the
presence of a magistrate or justice and is simply inadmissible on that ground
alone.

[13] When the appeal was heard, counsel for the State was asked whether the court
below was correct, given the quality of the evidence of the State to refuse the s
174 application. Specifically he was also asked whether the court below was
correct in admitting into evidence the statements by the appellant to Masiwelele
and to the policemen who arrested him.

[14] In response, Mr Poodhun who appeared in the appeal as well, conceded the
following:
(i) The statement, though seemingly not considered in finding the appellant guilty,
was in fact a confession and was clearly, on the face of it, inadmissible because it
was made to a non-commissioned officer;
(ii) Whatever was said to the policemen by the appellant at the time of his arrest
was also not admissible;
(iii) That in the circumstances, the appellant could possibly have been snared into
testifying, and but for evidence in the statements, the State had not produced
evidence to prove his guilt beyond reasonable doubt.

[15] The law regarding the admissibility of a confession seems to have escaped the
trial judge and as a result an inadmissible confession and inadmissible statements
made to the arresting officers were admitted into evidence. This failure to rule the
aforementioned statements inadmissible constituted a serious irregularity and this
leaves this court at large to deal with the matter as the court below should have.

[16] South African criminal law has traditionally incorporated the notions of fairness
and justice though it was qualified from time to time. However since the advent of
a democratic dispensation, the right to a fair and just trial has been enshrined in
the Constitution – s 35(3) (and its predecessor). In S v Zuma 1995 (1) SACR 568
(CC), at para 16, Kentridge AJ (as he then was) said:
„The right to a fair trial conferred by that provision is broader than the list of specific rights
set out in paras (a) to (j) of the subsection. It embraces a concept of substantive fairness
which is not to be equated with what might have passed muster in our criminal courts
before the Constitution came into force. In S v Rudman and Another; S v Mthwana 1992
(1) SA 343 (A), the Appellate Division, while not decrying the importance of fairness in
criminal proceedings, held that the function of a Court of criminal appeal in South Africa
was to enquire
“whether there has been an irregularity or illegality, that is a departure from the
formalities, rules and principles of procedure according to which our law requires a
criminal trial to be initiated or conducted.”
A Court of appeal, it was said (at 377)

“does not enquire whether the trial was fair in accordance with "notions of basic
fairness and justice", or with the "ideas underlying the concept of justice which are
the basis of all civilised systems of criminal administration.”
That was an authoritative statement of the law before 27 April 1994. Since that date s
25(3) has required criminal trials to be conducted in accordance with just those “notions of
basic fairness and justice”. It is now for all courts hearing criminal trials or criminal appeals
to give content to those notions.‟1 (See also S v Khan 1997 (2) SACR 611 (SCA).)

[17] In Key v Attorney-General, Cape Provincial Division 1996 (4) SA 187 (CC) para
13, the following was stated:
„In any democratic criminal justice system there is a tension between, on the one hand,
the public interest in bringing criminals to book and, on the other, the equally great public
interest in ensuring that justice is manifestly done to all, even those suspected of conduct
which would put them beyond the pale. To be sure, a prominent feature of that tension is
the universal and unceasing endeavour by international human rights bodies, enlightened
legislatures and courts to prevent or curtail excessive zeal by State agencies in the
prevention, investigation or prosecution of crime. But none of that means sympathy for
crime and its perpetrators. Nor does it mean a predilection for technical niceties and
ingenious legal stratagems. What the Constitution demands is that the accused be given
a fair trial.‟

[18] This court, in dealing with a similar situation In S v Legote 2001 (2) SACR 179
(SCA) held at 184d-i that the court, without compromising objectivity, has a duty to
manage a criminal trial within the law governing criminal procedure. For example,
the court has a duty to ensure that the accused is properly defended and that his
or her constitutional rights are not negatively affected either by commission or
omission. If at the end of the State‟s case, the State has not made out a prima
facie case, in other words there is nothing for the accused to answer, the presiding
officer must raise this question mero motu, especially in the absence of an
application for discharge. It seems that this duty is not dependent on whether the
accused is represented or not. See: R v Hepworth 1928 AD 265 at 277.

[19] Section 35(3) of the Constitution compels presiding officers and indeed all officers
of the court to play a role during the course of a trial in order to achieve a fair and

1 Section 25(3) was contained in the Interim Constitution of 1993. The equivalent section is now to be found
in s 35 of the Constitution.

just outcome. As was said in Hepworth at 277 (supra) „a criminal trial is not a
game where one side is entitled to claim the benefit of any omission or mistake
made by the other side, and a judge's position in a criminal trial is not merely that
of an umpire to see that the rules of the game are observed‟. A judge‟s role is to
see that justice is done. Assuming that the learned judge in the court below had
for some reason indeed been mistaken or neglected to rule these statements
inadmissible, there are others who could and should have „reminded‟ him of the
dangers involved in admitting certain evidence. This is what was expected of both
the prosecutor and the defence representative.

[20] It is unclear and indeed perplexing that the appellant‟s representative did not
object to the admission of the written statement and the other evidence which also
amounted to inadmissible evidence. Even more important is the role of the
prosecutor. A prosecutor stands in a special position in relation to the court. The
paramount duty of a prosecutor is not to procure a conviction but to assist the
court in ascertaining the truth. (S v Jija 1991 (2) SA 52 ECD at 67J-68A). Implicit
herein is the prosecutor‟s role in assisting a court to ascertain the truth and
dispense with justice. This, not surprisingly, gels with the stringent ethical rules by
which all legal representatives have to conduct themselves in their professional
lives.

[21] In this case, the prosecutor was duty bound to alert the presiding officer of the
possible dangers which were lurking in admitting the warning statement. The
prosecutor who was the only person likely to know exactly what evidence he was
about to place before court ought to have at least sought a ruling on the
admissibility of the warning statement and the statement allegedly made by the
appellant to the policemen who arrested him. The written statement, as he himself
now concedes, is a confession. It could not have been admitted for lack of
compliance with legal formalities. If the prosecutor was intent on having such
evidence admitted, at the very least he should have requested a trial-within-a-trial
in order to determine the admissibility of the warning statement. The same can be
said about the evidence by the policemen who arrested the appellant. It must
however be said that it is difficult to understand how anyone could mistake what is
clearly a confession for a warning statement. The prosecutor failed in his duty.

Had the proper procedure in regard to the admissibility of these statements been
followed, the scenario which the appellant faced would have been quite different
as conceded. But for these inadmissible statements, there would be no case for
the appellant to answer.

[22] Faced with this evidence, the appellant was clearly lured into testifying and
consequently he did not receive a fair trial as enshrined by s 35 of the
Constitution. Absent the inadmissible evidence he ought to have succeeded in his
application for discharge after the State‟s case. The conviction therefore falls to be
set aside. It follows that the sentence should also be set aside.

[23] The tragedy in this specific matter is that a person who ought to have been
discharged after the State‟s case in 2002 is now free – some 12 years on. There
was no explanation offered for this delay when the parties were asked about it.
One can only imagine the disastrous effects on his life. It emphasises the need for
the administration of justice, especially from the area over which the Venda High
Court has jurisdiction, to be vastly improved as quickly as possible. This is not the
first time that this court has found it necessary to comment on these problems and
their effects on the lives of ordinary South Africans in that region.

[24] In the result, the following order is made:
1 The appeal is allowed and the conviction and sentence set aside.
2. The registrar of this court is directed to send a copy of this judgment to;

(a) The National Director of Public Prosecutions, Pretoria;

(b) The Director of Public Prosecutions, Thohoyandou; and

(c) Legal Aid South Africa, Thohoyandou.

R PILLAY

JUDGE OF APPEAL

APPEARANCES:

FOR APPELLANT:

Mr A L Thomu

Instructed by:

Legal Aid South Africa, Thohoyandou

Legal Aid South Africa, Bloemfontein

FOR RESPONDENT:

Mr A I S Poodhun

Instructed by:

The National Director of Public Prosecutions,
Thohoyandou

The National Director of Public Prosecutions,
Bloemfontein