The Supreme Court of Appeal (SCA) recently expressed shock and disappointment at the protracted delays in finalising a murder case which dragged for about 20 years declaring it both unreasonable and unconstitutional.
The appeal was brought by Jose Pedro Morais Carneiro after he was sentenced to seven years’ imprisonment by the Johannesburg Regional Court for the killing of Vuzumuzi Herry Bongolo in the early hours of September 3, 1999.
Carneiro pleaded not guilty to the killing in the long drawn trial and his subsequent appeals to the trial court and the South Gauteng High Court fell flat forcing him to approach the SCA, to appeal against the conviction.
“This court has in a number of judgments expressed its displeasure at the lackadaisical approach in promptly dealing with trials and appeals,” said Justice Rammaka Mathopo in the ruling that saw Carneiro walking free.
According to the state, Bongolo was walking along Pretoria Street in Hillbrow, Johannesburg in the company of his friends when he was fatally shot. Two of his friends, who were called as state witnesses, identified the appellant as the perpetrator and he was arrested that evening.
On February 7, 2000 the appellant was arraigned before the Johannesburg Regional Court (trial court) on a charge of murder. He pleaded not guilty to the charge.
After a long drawn-out trial, during the whole of which he was on bail, he was convicted on May 31, 2006.
On November 20, 2006, he was sentenced to seven years’ imprisonment, the trial court having found that there were substantial and compelling circumstances justifying a lesser sentence than the statutory minimum. He was granted leave to appeal the conviction by the trial court on the same day and his bail was extended.
“One aspect of the case that has caused this court considerable disquiet is the long delay in having this appeal prosecuted expeditiously. The appellant was sentenced on 20 November 2006. The appeal was heard by the South Gauteng High Court on 1 December 2010. This was after a delay of some four years. The present appeal was finally heard by this court on 11 March 2019. All in all it took a total of 13 years for this appeal to be disposed of,” he said.
Mathopo noted in his view, the inordinate delay may well have vitiated the appellant’s right to a fair trial and appeal and rendered it unconstitutional.
He said in the ordinary course the appeal should have come before the high court far sooner. He also described the lack of explanation for this highly regrettable delay is unconscionable.
“What further exacerbates our disquiet is that part of the delay in the trial was caused by the insistence of the magistrate on securing a transcript of the proceedings, which delayed the preparation and delivery of judgment by over a year. This was despite the fact that during the trial he repeatedly asked witnesses to take their time so that he could take notes. This approach is clearly unacceptable. What is further disturbing is that the record of the proceedings is replete with too many instances where the trial magistrate interrupted the proceedings and unduly spoke for a long period of time,” said the judgement.
Although the appellant was out on bail during his trial and for most of the period during which appeal proceedings were pending, the lengthy delay which occurred after December 2010, without the appeal being heard, led to a number of administrative errors resulting in his bail being estreated and a warrant issued for his arrest.
He arrested on June 9, 2015 for him to start serving his sentence. He remained in prison until September 2016 when the SCA granted special leave to appeal against the high court’s decision to strike his appeal from the roll.
This resulted in Carneiro spending 15 months in prison.
And as if that was not enough, the evidence presented before was found by the SCA to be fraught with contradictions and inconsistencies that it was improbable for a court to reach a fair verdict.
The state called two eyewitnesses, who were allegedly present when the deceased was shot, and two police officers whose evidence was of a peripheral nature. The appellant testified in his defence and did not call any witnesses.
“It seems clear to me that the benefit of making proper credibility findings was lost as a result of delays. The first eye witness gave his evidence in September 2001 and the second slightly more than a year later in November 2002. The police officers testified in March 2003 and the appellant on 29 June 2004. The argument took place on 2 March 2005 and judgment was delivered on 31 May 2006 almost two years after the evidence was finalised and three and a half to four and a half years after the two eyewitnesses for the state had testified.
“For 14 months the magistrate delayed the matter while waiting for the transcript, a delay aggravated by the fact that some of the cassettes on which it was recorded went astray. It can safely be assumed that he had little recollection of this case and of the witnesses after such a delay. The delay would have affected his ability to make proper credibility findings. An examination of the evidence indicates that his credibility findings were flawed. It is, of course, trite that the powers of a court on appeal against factual findings are limited,” the SCA found.
The appellant disproved the conviction on the basis that there was no direct evidence linking him to the offence. It was contended that the trial court misdirected itself in placing reliance on the evidence of the state witnesses whose evidence was full of contradictions and inconsistencies.
At the centre of the appeal is the identity of the person who fired the shot that killed the deceased. To prove its case the state relied on the evidence of the friends of the deceased who were with him shortly before he was fatally wounded. What was in dispute, however, was the reliability and credibility of the state witnesses who identified the appellant as the person who fired the fatal shot.
In his defence the appellant admitted that he fired several shots in the ground but disputed that any of those shots could have hit the deceased.
In an attempt to counter that defence the state sought and obtained a postponement to procure ballistics evidence, a sketch plan and a map prior to the commencement of the trial, but these were never presented in court.
“I am thus not satisfied that the guilt of the appellant was proved beyond reasonable doubt. The evidence of the state witnesses was patently unsatisfactory and unreliable. Even if we had doubts about the veracity of the appellant and could imagine scenarios in which he might have been responsible for the deceased’s death, the remaining evidence was not sufficient to discharge the onus. The appeal must be upheld and the appellant must be acquitted,” ruled Mathopo.