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[2016] ZASCA 70
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Mulaudzi v S (768/2015) [2016] ZASCA 70 (20 May 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 768/2015
In
the matter between:
MARCUS
NNDATENI MULAUDZI
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Mulaudzi
v The State
(768/2015)
[2016] ZASCA 70
(20 May 2016)
Coram:
Theron,
Petse and Willis JJA
Heard:
5 May
2016
Delivered:
20
May 2016
Summary:
Criminal
Law ─ whether the State proved beyond a reasonable doubt that
appellant was guilty of murder and robbery where the
only material
evidence was that of an accomplice, a single witness found to be
untruthful and whose evidence was not corroborated.
ORDER
On
appeal from:
Limpopo
Local Division of the High Court, Thohoyandou (Makgoba AJ sitting as
court of first instance):
The
following order was made on 5 May 2016:
1
The appeal is upheld. The convictions and related sentences are set
aside.
2
Reasons for this order will be furnished later.
JUDGMENT
Petse
JA (
Theron
and Willis JJA
concurring):
[1]
The appellant, Mr Marcus Nndateni Mulaudzi, together with three other
persons who do not feature in this appeal, was charged
in the Limpopo
Local Division of the High Court, Thohoyandou (Makgoba AJ) on three
counts, namely: (a) murder; (b) robbery with
aggravating
circumstances; and (c) attempted murder. On 22 August 2006 he was
convicted of murder and robbery but acquitted on
the count of
attempted murder. He was sentenced to imprisonment for life on the
murder count and ten years’ imprisonment
in respect of the
robbery.
[2]
Subsequently, he applied for leave to appeal against his conviction
which application was heard by Hetisani J and refused. The
appellant
appeals against conviction with the leave of this court. The appeal
served before us on 5 May 2016. After conclusion
of argument the
court made an order upholding the appeal and setting aside the
conviction and the related sentences, indicating
that reasons for the
order would be filed later. The following are such reasons.
[3]
The appellant was the third accused at the trial. His co-accused were
Mr Tshimangadzo Leroy Mushweu; Mr Piet Mudzugu and
Mr Samuel
Ntshavheni Ndwambi who were the first, second and fourth accused,
respectively. At the commencement of the trial they
all pleaded not
guilty to the charges. For present purposes there is nothing material
to be said concerning the second and fourth
accused.
[4]
The State called four witnesses to testify at the trial. None of the
State witnesses gave any incriminating evidence against
the
appellant. According to the evidence of the principal witness, Ms
Masindi Ramusetheli, the complainant in relation to count
3
(attempted murder) and the deceased’s mother, she was disturbed
by a commotion that occurred in the garage during the early
evening
of 25 July 2005. She rushed to the garage and there saw two men one
of whom was the first accused. At that stage the deceased
had already
been shot. When she tried to intervene, she was struck twice in the
head with an iron bar. She sustained injury which
rendered her
intervention of no avail.
[5]
One of the other witnesses called by the State, Mr Tshifhiwa Herold
Mushweu, testified that some time after the killing of the
deceased
he received a telephone call from someone, whom he did not know, who
introduced himself as Marcus (being a reference to
the appellant).
The caller requested him to convey a message to the first accused,
his brother, to come and collect a jacket that
he said he had bought
for the first accused.
[6]
All of the accused, barring the second accused, testified in their
defence. Of particular importance is the evidence of the
first
accused. It bears mentioning that during the State’s case it
tendered evidence of an extra-curial statement (termed
a confession
by the State) made by the first accused. Despite the first accused
contesting the admissibility of this statement
it was ruled
admissible by the trial court.
[7]
In that statement, the first accused alleged that he was party to a
conspiracy involving his co-accused in terms of which it
was agreed
that they would rob the deceased of his money. He alleged that his
role was to point out the deceased’s homestead
to the second
and third accused whilst the fourth accused’s role was to
supply the firearm to be used during the robbery.
The appellant drove
them to the deceased’s home in a Toyota Venture motor vehicle
owned by the appellant’s employer.
The first accused said that
he was an unwilling participant in this escapade but was compelled to
participate for fear of reprisal
at the hands of his co-conspirators
and in particular the fourth accused. He went on to allege that it
was the second accused and
the appellant who committed the offences
with which they were charged and that the former was the one who
pulled the trigger. In
his testimony at the trial, the first accused
in substance regurgitated the contents of his statement.
[8]
When the appellant testified in his defence, he denied that he was a
party both to the conspiracy and the actual execution of
such
conspiracy. In essence he raised an alibi and said that it would not
have been possible for him to use his employer’s
motor vehicle
to convey the perpetrators to the scene where the crimes were
committed. He testified that after he had knocked off
from work and
parked his employer’s motor vehicle at the latter’s home
he retired to his home.
[9]
The trial court characterised the first accused’s defence as
one of compulsion. It went on to find that so far as the
first
accused sought to exculpate himself both in his extra-curial
statement and
viva
voce
evidence in court he was untruthful. But it then proceeded to
uncritically accept his evidence that incriminated the appellant.
It
found that ‘if accused 1 wanted to falsely implicate accused 3
(a reference to the appellant) he would have gone further
to describe
the degree of participation by accused 3, what he did at [deceased’s]
place. It is not being suggested that accused
3 at one stage pulled
the trigger or used any form of weapon to attack the deceased.
Accused 3’s degree of participation
was of grabbing deceased
when either accused 1 or 2 shot at the deceased’.
[10]
There are several fundamental misdirections that emerge from the
judgment of the court a quo. First, it did not evaluate the
evidence
in its entirety. Not even a fleeting reference was made to the
countervailing evidence of the appellant. Thus the conflict
between
the evidence of the first accused on the one hand and that of the
appellant on the other hand escaped the attention of
the court a quo.
As Nugent J explained in
S
v Van der Meyden
:
[1]
‘
What
must be borne in mind, however, is that the conclusion which is
reached (whether it be to convict or to acquit) must account
for all
the evidence. Some of the evidence might be found to be false; some
of it might be found to be unreliable; and some of
it might be found
to be only possibly false or unreliable; but none of it may simply be
ignored.’
This
dictum has been quoted with approval in several cases by this
court.
[2]
[11]
Second, the court a quo did not at all advert to the fact that on the
first accused’s own version, upon which it relied
entirely in
convicting the appellant, the first accused was both an accomplice
and a single witness. Thus it failed to exercise
the caution that it
was enjoined to do in evaluating his evidence. In
S
v Johannes
[3]
this court cited with approval a passage in Hoffman
The
SA Law of Evidence
2ed at 269 where the following is stated:
‘
The
evidence of a co-accused given on his own behalf is, when considered
against a co-accused, the evidence of an accomplice and
open to all
the objections which can be made to accomplice evidence. The
cautionary rule for dealing with such evidence should
therefore be
applied.’
[12]
As to the cautionary rule that courts are enjoined to apply when
evaluating the evidence of an accomplice the remarks of this
court in
R v Ncanana
1948 (4) SA 399
(A) at 405 are apposite. This
court said:
‘
The
rule of practice which it was intended to state and which is
consistent with, if it is not expressly approved in, decisions
of
this Court (see
R
v Kubuse
(1945
AD 189)
;
R
v Brewis
(1945
AD 261)
;
R
v Kristusamy
(1945
AD 549))
is that, even where sec. 285 has been satisfied, caution in
dealing with the evidence of an accomplice is still imperative. The
cautious Court or jury will often properly acquit in the absence of
other evidence connecting the accused with the crime, but no
rule of
law or practice requires it to do so. What is required is
that the trier of fact should warn himself, or, if
the trier is a
jury, that it should be warned, of the special danger of convicting
on the evidence of an accomplice; for an accomplice
is not merely a
witness with a possible motive to tell lies about an innocent accused
but is such a witness peculiarly equipped,
by reason of his inside
knowledge of the crime, to convince the unwary that his lies are the
truth. This special danger is not
met by corroboration of the
accomplice in material respects not implicating the accused, or by
proof
aliunde
that
the crime charged was committed by someone; so that satisfaction of
the requirements of sec. 285 does not sufficiently
protect the
accused against the risk of false incrimination by an accomplice. The
risk that he may be convicted wrongly although
sec. 285 has been
satisfied will be reduced, and in the most satisfactory way, if there
is corroboration implicating the accused.’
[4]
By
corroboration is meant other evidence which supports the evidence of
the accomplice and renders the evidence of the accused less
probable
on the question in issue.
[5]
[13]
It is as well to bear in mind that an accused’s version cannot
be rejected on the basis of inherent probabilities unless
it were
found that it is so improbable that it cannot be reasonably possibly
true. In my view there is nothing inherently improbable
about the
appellant’s version to warrant its rejection as false beyond
reasonable doubt. And as Schreiner JA made plain in
Ncanana
(at 406), acceptance of the evidence of the accomplice and rejection
of the accused’s evidence is appropriate only:
‘
[W]here
the merits of the former as a witness and the demerits of the latter
are beyond question.’
[14]
In the circumstances of this case it was not, in my view, appropriate
to accept the evidence of the first accused and reject
that of the
appellant. As Miller JA observed in
S v Dladla
1980 (1) SA 526
(A) at 530H-B:
‘
Where
a witness who is also an accused on trial not only makes a very poor
impression on the Court and gives evidence which is singularly
lacking in consistency and quality, but also appears to be a witness
prone to exonerating himself or minimising his own responsibility
at
the expense of his co-accused to whom he assigns a progressively
greater part in the crime . . .’
In
this case the first accused was a poor witness who went to great
lengths not only to minimise his role at the expense of the
appellant
but also, most importantly, to exonerate himself.
[15]
Furthermore, the court a quo found accused number 1 to have been
untruthful in a most material way in his vain attempts to
exculpate
himself by raising compulsion as a defence. Accordingly, there was no
sound reason to accept his evidence so far as it
was in conflict with
that of the appellant. Nor was there any justification for rejecting
the appellant’s evidence as not
reasonably possibly true.
Additionally, as alluded to above, there is yet another
insurmountable obstacle in the path of the State,
namely that the
first accused ─ being the only witness who gave incriminating
evidence against the appellant at the trial
─ was a single
witness. Consequently, his evidence was required to be clear and
satisfactory in every material respect.
[6]
In my view, the shortcomings inherent in the evidence of the first
accused detract from its trustworthiness.
[16]
In the result I am satisfied that the evidence of the first accused
was, in its entirety, unworthy of credence for the reasons
stated
above and thus should not have been relied upon to convict the
appellant. The State therefore failed to discharge the onus
resting
on it and the appellant should have been acquitted.
[17]
It was for all the foregoing reasons that the order mentioned at the
outset was made.
_________________
X M PETSE
JUDGE
OF APPEAL
APPEARANCES:
For
Appellant:
M J Mpshe SC
(with
A A Ramanyimi)
Instructed
by:
Mvundlela
& Associates Attorneys, Thohoyandou
L &
V Attorneys, Bloemfontein
For
Respondents:
R J Makhera
Instructed
by:
Director
of Public Prosecutions, Thohoyandou
Director
of Public Prosecutions, Bloemfontein
[1]
S v Van der
Meyden
1999
(1) SACR 447
(W) at 450a-b;
1999 (2) SA 79
at 82D-E.
[2]
See for example,
S
v Van Aswegen
;
[2001] ZASCA 61
;
2001 (2) SACR 97
(SCA) para 8;
S
v Trainor
;
[2002] ZASCA 125
;
2003 (1) SACR 35
(SCA) para 8;
S
v Gentle
;
[2005] ZASCA 26
;
2005 (1) SACR 420
(SCA) para 27.
[3]
S v Johannes
1980 (1) SA 531
(A) at 533B-C.
[4]
This passage has
repeatedly been cited in later judgments of this court. See, for
example:
S
v Hlapezula & others
1965
(4) SA 439
(A) at 440C;
S
v Scott-Crossley
[2007]
ZASCA 127
;
2008 (1) SACR 223
(SCA) para 7.
[5]
See for example:
S
v Gentle
;
[2005] ZASCA 26
;
2005 (1) SACR 420
(SCA) at 430j-431a;
S
v Makeba & another
[2003] ZASCA 66
;
2003 (2) SACR 128
(SCA) para 12.
[6]
See for example:
R
v Mokoena
1932
OPD 79
at 80. This passage was referred to with approval by this
court in
S
v Sauls & others
1981 (3) SA 172
(A) at 179H.