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[2015] ZAGPJHC 262
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Shabalala v S (A 201/2015) [2015] ZAGPJHC 262 (17 November 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: A 201/2015
DATE:
17 NOVEMBER 2015
In the
matter between:
SHABALALA
MACHOSINI
......................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
SATCHWELL J:
INTRODUCTION
1.
This is an appeal
against the conviction of Mr Shabalala on 16th September 2013 by
Naidoo AJ on one count murder and one count of
robbery with
aggravating circumstances in respect of which the court a quo gave
leave to appeal on the grounds that “people
think differently.”
2.
At issue is whether or
not there is sufficient evidence to sustain appellant’s
conviction of the robbery and murder of L…….
B….
(‘F…..’) on 19th January 2013 beyond reasonable
doubt. The trial court found that the “totality
of the
evidence” justified a finding that “the proven facts
support the inference that the accused robbed and murdered
the
deceased on 19th January 2013 and that this is the only reasonable
inference to be drawn from such given facts”. That
finding is
challenged on the grounds that too much weight has been attached to
the evidence of the state witnesses.
3.
The background to this
trial may be succinctly stated. F……… was a 13
year old boy who lived with his mother,
Bango, and her boyfriend,
appellant. On Saturday 16th September, F……… went
out to play with his bicycle taking
his cellphone with him, his
mother had a nap and appellant left the house. F………
did not return home that evening
which was reported to the South
African Police Services. There was a search for him which involved
many members of the family and
community. His bicycle was
subsequently found on an embankment near a river and his body was
found later in the reeds next to the
river. F………’s
cellphone was subsequently found in the possession of one Nhlabathi.
THE EVIDENCE
4.
The evidence which
points to appellant as the perpetrator of the killing of F………
and robbery of his cellphone
is circumstantial in nature.
5.
Such evidence must
be considered in its totality and thereafter one applies the
oft-quoted dictum in
R
v Blom
1939 AD 188
at 202
as to assessment of the two cardinal rules of logic that
the inference sought to be drawn must be consistent with all
the
proved facts and that the proved facts exclude every other
reasonable inference save the one to be drawn. In
weighing the cumulative effect of all inferences drawn one must bear
in mind that “a number of circumstances, each
individually very slight, may so tally with and confirm each
other as to leave no room for doubt of the fact which they tend
to
establish….. Even two articles of circumstantial
evidence, though each taken by itself weigh but as a feather,
join
them together, you will find them pressing on a delinquent with the
weight of a mill-stone.”
[1]
The Cellphone
6.
The major evidence is
the alleged possession of the deceased’s cellphone by appellant
and his sale or pledge of this cellphone
to the witness Joseph
Nhlabathi in exchange for the sum of R 400.00. At trial, the
appellant disputed the evidence of Nhlabathi
and denied that he
had ever possessed the phone or sold or pledged it.
7.
Nhlabathi testified
that he knew appellant through a mutual friend. On Sunday 20
th
January appellant contacted him and they met at the Tembisa Plaza.
Appellant presented him with a cellphone which he asked Nhlabathi
to
keep for him and asked to borrow funds which he needed “to pour
petrol into the car so he could go and look for the child”.
They agreed that Nhlabathi would loan him R 400 and keep the phone as
security. Appellant removed the simcard from the phone and
gave
Nhlabathi a Blackberry phone (purple in colour) and took the R
400.00. Nhlabathi variously inserted his and his girlfriend’s
simcards into this phone. He changed the front face of the Blackberry
from purple to black.
8.
Appellant disputed this
evidence at trial, stating that any communication between himself and
Nhlabathi pertained to disagreements
over a young lady, one Nomcebo
and that he had never handed a Blackberry or any other phone to
Nhlabathi.
9.
This phone was
subsequently identified as belong to the deceased. The IMEI number of
the phone which was recovered through Nhlabathi
was the same as that
of the deceased – IMEI 350908049116730
[2]
-and the phone was the same make (though Nhlabathi had changed the
cover).
[3]
10.
In assessing the
evidence of Nhlabathi, one must bear in mind that, on this point, he
is a single witness. In addition, one must
be mindful that it is he
whom the SAPS connected to possession of and use of the cellphone and
that he has an interest in directing
the enquiries of the SAPS away
from himself. Finally, on his own version, he received a cellphone
from appellant in exchange for
which he gave appellant a sum of money
which makes him, at the very least, a dealer in stolen property and,
ultimately, the reason
why persons are frequently robbed for or
murdered for their cellphones which have monetary value. In sum, the
trial court and this
appeal court must be extremely cautious in
assessing the evidence of Nhlabathi who is a single witness, a
possible suspect and
himself a role-player.
11.
Nhlabathi’s
evidence is confirmed or corroborated in important respects.
12.
Firstly, he and
appellant were in communication over the period 15th January to 14th
February 2013 on at least 36 occasions.
[4]
Twenty seven of those calls emanated from appellant.
Appellant sought to explain all this communication whilst F……..
was missing and a search was underway on the grounds that he was
telling Nhlabathi to keep away from his girlfriend, Nomcebo.
Nomcebo (the alleged girlfriend) gave
evidence and denied that she was ever in a relationship with
appellant
who, after all, was in a relationship with the mother of
the deceased. In any event, appellant was strangely
ignorant of the personal life and details of Nomcebo, his supposed
girlfriend.
13.
Secondly, Nhlabathi’s
evidence is that he handed R 400.00 in cash to appellant on Sunday
which appellant denies. Siphiwe
Magagula gave evidence
that she had lent or given R 10 to appellant the day before
(Saturday) so he could purchase airtime as he
had no money. The
following day, Sunday, Siphiwe and appellant went for a drink at the
shebeen of Hilda Duda. Hilda gave evidence
that appellant did
not have money with him but then received a phone call, said he was
leaving and meeting someone at the
robot at the Plaza and would
pay for the drinks on his return which he did, giving her R
50.
14.
Accordingly, the
undeniable evidence is that Nhlabathi was in touch
with appellant over this crucial period and
appellant received funds
at the time when and where Nhlabathi averred.
Nhlabathi is corroborated.
15.
It can only but be
found that appellant was in possession of the cellphone of the
deceased and sold or pledged it to Nhlabathi.
Pointing out of the
bicycle
16.
It was common cause
that F……… was at home with his mother and
Siphiwe Magagula. Ben
Molaba saw
them and made an arrangement with the boy to collect certain ‘movies’
for the boy to watch. By the
time he returned to the house,
F……… had gone. Mariett Bango said
that her son left but she
did not know when appellant left the house.
17.
F……….
disappeared from home on the evening of Saturday 19th January.
18.
His family and friends
searched for, but did not find, him. A report was made to the South
African Police Services. In the
course of that Saturday
evening, appellant stated to the family that “we
are going to find the bicycle first”
and “after
that we would find the child dead”.
19.
A group of boys,
who did not give evidence, brought F………..’s
bicycle which they had found near the river
on Sunday morning at
about 11h00. Ben Molaba went on foot, with appellant, to
see the place where the bicycle was found
and thereafter searched for
F………… but they did not find
anything.
20.
Meriett Bango mother of
F……….. and girlfriend to appellant, gave
evidence that she asked her sister, Aletta,
to approach appellant on
the grounds that he had a reputation as a ‘prophet’ and
asked him to give guidance. Appellant
asked for liquor. After some
meditation, appellant said that they should search where the
bicycle had been found.
21.
Bango and Molaba gave
evidence that, again on Sunday, appellant was again asked to use his
powers to find the boy. It
is the evidence of both
Bango and Molaba that ‘Uncle Bubu’ was the driver of the
vehicle. There is
no evidence who gave directions to the
place near the river where the bicycle had been found. It
is common casue
that appellant banged on the dashboard
when the spot was reached near the river where the bicycle was
found.
Appellant obviously knew this
place (as did Molaba) from their earlier visit.
22.
However,
there is then the evidence of Bango and Molaba that the
appellant left the vehicle and threw himself
on the ground where the
bicycle was found. Only Molaba from all the
witnesses had been shown where the
bicycle was found
and was therefor in any position to know that appellant had
‘thrown himself on the ground’
where the bicycle
was found. Again, appellant had already
visited this spot in the company of others.
23.
It is my view that
little can be made of the ‘pointing out’ of the
place where the bicycle was found.
However, it is
notable that appellant was in a position, on Saturday night
when the child was missing,
to comment that the
child was dead which, at that stage, no one else
suspected or knew.
Pointing
out of the Body
24.
After Bango (mother to
the boy) had made further requests of appellant to try and find
her son, he performed certain
strange rituals and went in
the vehicle as already described to the river. None
of the persons with him appear
very impressed by his further rituals
- ranging from plastering mud on a mirror to leaping into the
river and humming
and giggling to himself.
Bango left. Accordingly, the only witness as to what
happened is Ben Molaba.
25.
Molaba said that,
while appellant was in the river, he was making gestures
towards the reeds behind those who
were standing on the river bank.
Pursuant to those gestures by appellant, the other
searchers went towards the
reeds where they found the body of
F……….. On this point, Molaba
is a single witness.
But his evidence is not in dispute.
This was also the evidence of appellant under cross-examination
who confirmed that
“I made gestures, yes” but
disclaimed knowledge whether he had pointed out the body or not.
26.
This ‘pointing
out’ by appellant was done at the instance of
his girlfriend, mother of the missing
boy, and her family. Appellant
had indicated before the boy was even thought to be dead that his
body was near the bicycle.
Appellant returned to
the place where the bicycle had been found. He made
gestures which led the searchers
to the place where the body
was lying hidden in the reeds. There is no suggestion that
there was anything untoward
in the manner in which he was encouraged
or enabled to perform this ‘pointing out’. No influence
or pressure was placed
on him. In fact, he was requested to assist
because he was believed to have special powers – even though
his rituals performed
at the stream apparently aroused amusement
which led to him flouncing into the stream. I have no
difficulty in accepting
that he made a ‘pointing out’.
27.
Appellant’s
explanation of his ability to find the body was that he was taken to
where the bicycle had been found, then returned
home where he
performed certain rituals relevant to his ‘prophecies’,
he was then taken back in Bubu’s car to
where the bicycle had
been found, more rituals were performed and he was moving from
side to side of the river while the
people were following him and one
of them found the body of the child. That is all very
well. But he purported
to have special powers, he
extracted both funds and attention by reason of those special
powers and he led
the searchers to the body.
Appellant
walking from the river
28.
Both Bango and Molaba
claimed to have seen appellant coming from the direction of the river
– Bango on Sunday when she was
looking for her son and Molaba
whilst he was sitting drinking some beers at the spaza shop on the
Saturday evening.
29.
Neither was very
impressive on this point. Molaba had been drinking but he
had opportunity to view appellant.
There is no evidence
how close the river is or what other shops or houses are along that
road. Molaba’s
evidence was initially stated
that he had seen appellant coming from the direction of the
shops and then changed by
the interpreter to have been that Molaba
saw appellant coming from the direction of the lake or river.
Bango
had gone into the road looking for her son and seen
appellant coming from the direction of the river. Again this
was not
explored. What is clear is, at this time, neither had
seen appellant as a suspect in any manner.
CONCLUSION
30.
I can see no
misdirection in either the procedure adopted at trial, the approach
to the evidence by the learned trial judge, the
understanding of that
evidence.
31.
I note that the right
ear of the deceased had been removed – Dr Medar thought
this could have been done by animals whilst
Colonel Kumana
was of the view this was a muti murder. Dr Medar did concede
that it was possible that someone could
have removed the
deceased’s ear. I do not think that it
is necessary to comment on the claims
of appellant to have
prophetical powers or the claims of Colonel Kumana on the likelihood
that this was a ‘muti murder’.
The two are not
necessarily linked and there is no evidence of any sale of body parts
as part of such a ‘muti murder’.
32.
I am of the view that
the evidence, though circumstantial, is sufficient to justify
the conviction of appellant
of the robbery of the deceased and
his murder.
33.
He and the boy knew
each other and lived in the same home. The boy’s cellphone was
found in the possession of Nhlabathi whose
explanation for such
possession is confirmed by the communications between himself and
appellant and the acquisition of funds by
the appellant.
The version of the appellant in this regard is not reasonably
possibly true. It
must be accepted that
appellant was in possession of F…………’s
cellphone on Sunday when he
handed it to Nhlabathi in exchange
for money.
34.
It is undisputed that
F………. left home in possession of his cellphone
and he was not subsequently seen alive.
The only
inference which can reasonably be drawn is that appellant
obtained possession of the cellphone
prior to or at the
time of the boy’s death thus leading to the inescapable
conclusion that appellant both robbed F………
and
then killed him.
35.
Prior to any suggestion
of the death of the boy, appellant was already on Saturday
evening talking of finding his ‘body’.
This certainly suggests knowledge of the fate of F………
to which only the robber and murderer would be privy.
36.
After the bicycle had
been found and all had returned to the scene of such recovery,
appellant continued with his rituals
and allegedly spiritual
practices. What is of importance is that he
‘gesticulated’
in such a manner that this led
the searchers to go into the reeds adjacent to the river bank
where F…………’s
body was concealed.
Such gesticulations, whether presented as part of a
pseudo-spiritual ritual or not,
have exactly the same impact
and import as a ‘pointing out’. Appellant
indicated where the body of F………….
was to
be found.
37.
Expressing certainty
(not just a premonition) of the boys death on Saturday,
possession of the boys cellphone
and disposal of
that phone on Sunday, pointing out the body are the vital
pieces of circumstantial
evidence presented in this trial.
38.
In the result, I
can see no reason to interfere with the decision of the learned judge
in the court a quo as to conviction
on the counts of robbery and
murder.
39.
There has been no
argument that sentence is inappropriate or not in accordance with
justice. This was a young boy,
robbed and
killed by a man with whom his mother was in a relationship and
whom he presumably trusted. The robber
and murderer made
money out of his deeds by selling or pledging the cellphone to
Nhlabathi and using some of the proceeds
for alcohol even as a
search was underway for the missing boy.
40.
If indeed, there
is a link between appellant’s spiritual and ritual
proclivities and the mutilation and
murder of F……….
this makes what happened even more culpable.
Accordingly,
I would propose that an order be made that:
The
appeal against conviction is dismissed.
DATED
AT JOHANNESBURG NOVEMBER 2015
SATCHWELL J
I agree
It
is so ordered – the Appeal is dismissed
MAILULA J
I agree.
BORUCHOWITZ J
Counsel
for Appellant: Adv A H Lerm
Attorneys
for Appellant: Legal Aid SA
Counsel
for Respondent: Adv F Mohamed of the DPP
Dates
of hearing: 06
th
November 2015.
Date
of judgment: 17
th
November 2015.
[1]
See Best on Evidence 10
th
ed $297 quoted in S v
Reddy and Others 1996(2) SACR 1 A at 8c-h
[2]
Exhibit E.
[3]
Exhibit I is the phone itself on which the IMEI number appears.
[4]
Exhibit F records the calls of appellant.