Judge Ronnie Pillay.
No go: Judge Ronnie Pillay said problems in Limpopo courts must be addressed. Photo: David Harrison
A man found guilty of murder has been released from prison and his conviction has been overturned after 12 years in jail following a Supreme Court of Appeal finding that the legal system had failed him from his arrest to his conviction.
Takalani David Maliga (34 at the time), an employee of the South African National Defence Force stationed in Potchefstroom, shot his wife Eunice (31), in February 2000 at their home in the Vhembe district of Limpopo.
Maliga, who commuted home regularly, told police that he and his wife had been arguing about money and whether she was seeing another man when he shot her at about 9am on February 18.
Maliga said he had also confronted her about the fact that he did not believe he was the father of their last child.
At his trial his lawyer said that Eunice had been shot during a struggle, after Takalani attempted to take back a firearm she had taken from him.
Police were called to the scene by a neighbour, Ndulafe Matamela, after she heard a gunshot and a woman calling for help and “screaming that she was dying”.
According to police testimony at what was then the high court, Venda provincial division, Maliga told them when they went into his home where he had shot his wife.
The police, in line with the Criminal Procedure Act, told Maliga after the shooting that he was to be detained and asked whether he understood the reasons for his detention. He was then told, as required, that he could remain silent, request a lawyer or make a statement.
This was when, the appeal court said, the system began to fail Maliga. He told the police that he wanted a lawyer, but one was not provided and Maliga confessed to two police officers.
The confession, which was not made before a magistrate or a judge as required, was used by the court to convict Maliga for 48 years for murder.
Neither the prosecutor or Judge Alfred Lukoto, who heard the case, raised concerns that the confession had not been properly obtained and was therefore inadmissible.
Supreme Court of Appeal Judge Ronnie Pillay last week ordered that the court’s judgment be sent to the National Prosecuting Authority, saying “this was not the first time the court had found it necessary to comment on these problems and their effects on the lives of ordinary South Africans in that region” and that the problem needed to be addressed.
Judge Pillay found that the nine state witnesses did not implicate Maliga, and that the state had not produced evidence to prove Maliga’s guilt beyond reasonable doubt, relying instead on the confession.
Bernard Hotz, director of law firm Werksmans, said: “Like the Oscar Pistorius case, we know that the accused shot someone – in this case his wife, but what we do not know, because the accused’s case was never heard, is whether it was premeditated, which would determine if it was murder or culpable homicide. This would have influenced his sentence.”
Tim Gordon-Grant, partner at Bowman Gilfillan law firm, said what the judgment – apart from reminding the police, prosecutors and the state that Section 35 (3) of the Constitution protects the right to a fair trial – appears to extend to the court is the obligation of throwing out a case if it believes at the end of the state’s case that it did not make a “prima facie” case.
“Normally, and this certainly has been the practice in the past, the application for a discharge at the end of the case is usually made by the accused or the defence lawyers. Now it seems the magistrate has a duty to cover this issue, whether or not it is raised by the accused or the defence lawyers,” said Gordon-Grant.
In Maliga’s case his counsel did ask for the case to be thrown out but it was rejected.
Judge Pillay said the prosecutor was also at fault as he must have been aware that the confession should not have been allowed.
“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. One can only imagine the disastrous effects on his life.”
Mpho Phasha, spokesperson for Legal Aid SA, said the importance of the case is that it “compels presiding officers and all officers of the court to play a role during the course of the trial in order to achieve a fair and just outcome”.
Maliga, who is currently staying at his parents’ home in Johannesburg, said he was “very happy after 12 years in prison” to be reunited with his three children. He said he constantly worried about his children’s wellbeing while in prison.
Maliga, who calls himself David (not Takalani) hopes the South African National Defence Force will consider re-employing him. Should that not materialise, however, he plans to look for work in the textile industry, having completed a course in textile design while in prison.
The case was brought by Legal Aid South Africa