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[2015] ZASCA 191
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Khavhadi v S (459/15) [2015] ZASCA 191 (30 November 2015)
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`
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 459/15
In
the matter between:
AVHAPFANI
DANIEL KHAVHADI
FIRST APPELLANT
RUDZANI
ELISAH SIGOVHO
SECOND APPELLANT
MASHUDU
JOYCE MUDAU
THIRD APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation
:
Khavhadi
v S
(459/15)
[2015] ZASCA 191
(30 November 2015)
Coram:
Navsa,
Lewis, Pillay, Mbha and Zondi JJA
Heard:
20
November 2015
Delivered:
30
November 2015
Summary:
Criminal
law – evidence of death of deceased lacking – single
witness not credible and satisfactory – conviction
overturned.
ORDER
On
appeal from
Limpopo
Local Division of the High Court, Thohoyandou (Makgoba AJ sitting as
court of first instance):
The
appeal is upheld and the appellants’ convictions and related
sentences are set aside.
JUDGMENT
Zondi
JA
(Navsa,
Lewis, Pillay and Mbha JJA concurring):
[1]
The three appellants were convicted in the Limpopo Local Division of
the High Court, Thohoyandou (Makgoba AJ) of the murder
of four-year
old Tshilelo Sigovho (Tshilelo). They were each sentenced to a period
of life imprisonment. They appeal against their
convictions. The
first and third appellants were granted leave to appeal by this
court. The second appellant was granted leave
to appeal by the court
below. Tshilelo is the daughter of the second appellant, Rudzani
Elisah Sigovho (Rudzani).
[2]
In a nutshell, the State’s case, in the court below, was that
after Tshilelo had been left in the care of a friend and
neighbour,
namely, the principal witness on behalf of the State, Ms Azwinndini
Alice Maphosa (Maphosa), Rudzani arrived during
the night of 14
September 1999 together with the other two appellants and took her
daughter away in order to present her as a sacrifice
in a ritual
murder to appease the gods Rudzani believed in. It was alleged that
Tshilelo had to be killed in order to harvest her
body-parts for
presentation to the gods as part of the appeasement process. It is
common cause that Rudzani was in training to
become a traditional
healer. It is also undisputed that the third appellant was a
traditional healer and was training the second
appellant to be one as
well.
[3]
Rudzani and the other appellants were charged with the murder of
Tshilelo after the latter’s disappearance and after the
release
of two other suspects, which included Maphosa. The deduction that the
appellants had conspired to kill Tshilelo in order
to harvest her
body-parts to appease the gods was based on Maphosa’s assertion
that the first appellant, Avhapfani Daniel
Khavhadi (Khavadi), who is
also her common-law husband, had told her, on the night prior to
Tshilelo being spirited away, that
Rudzani’s gods required
human body-parts in order to be appeased.
[4]
There was no witness to the murder that had allegedly been committed
by the three appellants. Approximately a week after Tshilelo’s
disappearance, skeletal remains were found in the vicinity of where
she and her mother resided. At the commencement of proceedings
in the
court below a post-mortem report was admitted by consent of the
appellants. They also appear to have admitted that the skeletal
remains were that of Tshilelo. It is necessary to record that all
that was found was a skull and six ribs.
[5]
The doctor who completed the post-mortem report, recorded that the
child had been found on 14 September 1999. That date is at
odds with
the evidence of a policeman tendered in support of the State’s
case that he had been to the place where the remains
had been found
on 22 September 1999. From the photographs of the skeletal remains it
appears, at least superficially, that the
body had been in a
prolonged and advanced stage of decomposition. The post-mortem report
records that the sex of the person whose
remains were found was
undetermined but that it was ‘probably male’. This
conclusion was based on the doctor’s
observations of the
clothing that had been found with the skeletal remains. The time of
death was estimated by the doctor to be
‘four weeks or longer’
prior to the date on which the post-mortem examination was conducted.
From the skeletal remains
it was deduced that it was the remains of a
child who had been between four and seven-years old. The cause of
death was ‘undetermined’.
DNA testing, which would have
been conclusive as to the sex of the child, was not conducted.
[6]
In light of the very unsatisfactory conclusions recorded in the
post-mortem report, the admission about the identity of the
deceased
person whose skeletal remains were found is difficult to comprehend.
[7]
The very first problem for the State is that in order to sustain a
conviction for murder it had to prove that the person the
appellants
are accused of having murdered had in fact been killed. Even in the
face of the apparently uninformed admissions made
by the appellants
there must be grave doubt about whether the death of Tshilelo had
been proved. Put differently, there has to
be substantial doubt about
whether the skeletal remains were those of Tshilelo. An essential
element of the crime of murder would
thus not have been proved.
[1]
[8]
Even if the State were somehow to overcome the very fundamental
hurdle referred to in the preceding paragraph, the further difficulty
it faces is that the evidence of Maphosa, who was the only person who
implicated the three appellants, was wholly unreliable.
[9]
It is common cause that at a stage when the community was first made
aware of Tshilelo’s disappearance and when Rudzani,
at least
superficially, appeared frantic and sought the assistance of a
traditional healer and arranged for community leaders to
conduct a
search of the area, Maphosa went along with her and supported those
efforts. It was only when community suspicion fell
on Maphosa that
she publicly accused Rudzani of being involved in Tshilelo’s
disappearance. Her evidence in this regard is
noteworthy:
‘
As
people had gathered at my kraal I realised that there was a number of
school children and anything can happen. It is then that
I told this
group of people that people are just wasting time by searching my
kraal because the child was taken from my kraal by
accused 1 and 2.’
It
is clear from this testimony that fear for her own safety prompted
the accusations she levelled at two of the appellants. At
that stage
there was no mention of the third appellant. It must also be borne in
mind that she was among the first suspects to
be arrested and must
have been keen to avoid being prosecuted.
[10]
Furthermore, a person who was also taken into custody at about the
same time that Maphosa was arrested as a suspect,
Mr Sonnyboy
Netshitungulu, testified that he had seen Tshilelo crying on the
night on which she was allegedly spirited away by
the three
appellants, saying that she was on her way to Maphosa’s house
and that he then saw her make her way in that direction.
Netshitungulu testified in support of the State’s case.
However, his testimony, far from incriminating the appellants, casts
a shadow of suspicion on Maphosa.
[11]
The court below, even though reminding itself that it was dealing
with the evidence of a single witness in the
form of Maphosa and that
it should be cautious in its approach, did not consider the negative
aspects referred to in the preceding
two paragraphs. There is no
formula to apply when it comes to the consideration of the
credibility of a single witness. It is,
however, a well-established
judicial practice that the evidence of a single witness should be
approached with caution, and his
or her merits and demerits as a
witness should be weighed against factors which militate against his
or her credibility.
[2]
[12]
The court below erred in unreservedly accepting the evidence of
Maphosa. She was far from a satisfactory witness.
It is clear that
the State failed to prove the appellants’ guilt beyond a
reasonable doubt. For the reasons set out
above the convictions
and sentences are liable to be set aside.
[13]
The appeal is upheld and the appellants’ convictions and
related sentences are set aside.
_________________
D
H Zondi
Judge
of Appeal
Appearances
For
the Appellant: A L Thomu
(Attorney)
Instructed by:
Thohoyandou Justice Centre,
Thohoyandou
c/o Bloemfontein Justice
Centre ,
Bloemfontein
For the Respondent: R J Makhera
Instructed by:
Director of Public Prosecutions,
Thohoyandou
Director of Public Prosecutions, Bloemfontein
[1]
See C R
Snyman
Criminal
Law
,
5 ed (2008) at 447
et
seq
.
[2]
See E Du Toit
et al
Commentary
on the Criminal Procedure Act
,
Service Issue 54 January 2015, at 24-1 to 24-2C where the learned
authors comment on
section 208
of the
Criminal Procedure Act 51 of
1977
which provides that a conviction may follow on the evidence of
a single witness and see the authorities there cited.