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[2010] ZAGPJHC 172
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S v Matlala (247/2007) [2010] ZAGPJHC 172 (31 March 2010)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
Registrar Ref. No: 247/2007
DATE:31/03/2010
In the matter between:
THE STATE
versus
ALPHEUS
PHUTHI
MATLALA
..............................................................
Accused
MEYER, J
[1]
The
accused, Mr. Alpheus Phuthi Matlala, has been arraigned for trial on
an indictment containing one charge of the murder of the
late Mr.
Daniel Matome Bopape (‘the deceased’) on 2 May 2007 at or
near Sandton Drive, Hurlingham.
[2]
Adv.
Stellenberg represents the state and the accused is represented by an
attorney and by Adv. Dreyer. The accused pleaded not
guilty to the
charge of murder and he elected not to furnish a plea explanation.
He made formal admissions in terms of s 220 of
the Criminal Procedure
Act 51 of 1977 (exhibit ‘A’)
inter
alia
relating
to: the identity of the deceased; the date and place of the death
of the deceased; that the body of the deceased sustained
no further
injuries from the time of his death until a
post-mortem
was conducted; the correctness of the findings of the
post-mortem
examination
conducted by Dr. Nicola Lee Jessop on the body of the deceased as
recorded in exhibit ‘B’, except for paragraphs
(iv) and
(v) of the report; the correct depiction of the scene of the crime
in the photo album, key and sketch plan and the correctness
of the
photographs taken during the
post-mortem
examination
(exhibit ‘C’); the firearm licence of the accused
(exhibit ‘D’); the correctness of certain
ballistic
tests and the findings in respect thereof relating to the accused’s
firearm (exhibit ‘E’); the death
of the state witness,
the late Mr. William Mosete, on 15 September 2009 as a result of
natural causes and the correctness of his
death certificate (exhibit
‘F’).
[3]
The
State called three witnesses. They are: Mr. Solomon Mathaba, who
was an eyewitness to the incident; Capt. Tshililo Edson
Khalushi,
who is the investigating officer, and Dr. Nicola Lee Jessop, who is a
pathologist and who conducted a
post-mortem
examination
on the body of the deceased. The witness statement made by the late
Mr. William Mosete was admitted as evidence before
the state closed
its case (exhibit ‘G’). The accused testified. He also
called Mr. Samuel Skokota as a witness.
His case was then closed.
The investigating officer, Capt. Khalushi, was recalled as a witness
due to certain allegations that
were made against him by the accused
when he testified and with which allegations the investigating
officer was not confronted
when he testified. Adv. Dreyer, on behalf
of the accused, did not object to the recalling of the investigating
officer and conceded
that it was advisable.
[4]
It
is common cause that Mr. Solomon Mathaba (‘Solly’) sells
liquor and cigarettes at a park on Sandton Drive, Hurlingham
(‘the
park’). Solly testified that the deceased and his friends, who
were Mr. Zoliswa Kuwane (‘Zoliswa’),
Mr. George Sphombo
(‘George’), and the late Mr. William Mosete (‘William’),
were sitting and drinking beer
at a parking area in the park during
the early evening on 2 May 2007. Solly, his wife, and their child
were also seated with them.
It was just after 7:00 pm when the
accused arrived to buy cigarettes. He asked to speak to the
deceased. The two of them walked
a distance away. They remained
within Solly’s sight, but he was unable to overhear their
conversation. The deceased rejoined
his friends and the accused
left. A few minutes later the accused returned to the park in a
Jetta motor vehicle, which he parked
about 5 – 6 metres away
from where the deceased and those in his company were seated. The
accused alighted from the motor
vehicle armed with a firearm in his
hand which he pointed at the deceased. Those who were seated with
the deceased moved away.
The accused opened the boot of the motor
vehicle and told the deceased to get into the boot. He said he
wanted to take the deceased
to the police station. The accused
fired a shot. Solly testified that he is not certain whether it was
fired into the air or
into the ground. The deceased turned to run
away immediately after the firing of this shot. The accused fired a
second shot.
The deceased fell to the ground. Solly testified that
this shot was aimed at the deceased. The accused told Solly and the
others
that he was going to the police station and that it had
nothing to do with them.
[5]
The
investigating officer, Capt. Khalushi, testified that George and
Zoliswa attended this court on the previous occasions when
this
matter was on the roll in April and again in June 2009. They have no
fixed addresses and are unemployed. Capt. Khalushi
previously traced
them by going to public places where liquor is consumed. Capt.
Khalushi testified that he attempted to trace
George and Zoliswa for
the purpose of the present hearing, but he was unable to find them.
They disappeared. It is common cause
that William had died. George,
Zoliswa, and William are reflected as witnesses on the state’s
list of witnesses.
[6] Dr. Nicola Lee
Jessop
is
a Fellow of the College of Forensic Pathologists and she conducted a
post-mortem
examination
on the body of the deceased on 3 May 2007 (exhibit ‘B’).
The cause of death in her opinion was a gunshot
wound to the chest
with blood loss. In terms of her
post
mortem
findings
the entrance gunshot wound was on the posterior aspect of the left
shoulder. It was 7,5 cm below the shoulder line and
17 cm from the
midline. The entrance gunshot wound measured 1,3 cm x 1,3 cm with a
concentric collar of abrasion. A spent bullet
was recovered in the
right anterior chest. The gunshot wound tract involved the left back
chest wall in the third rib (the bullet
went through and perforated
the third rib), both lungs, the aortic arch and the left subclavian
artery (they are two of the main
blood vessels in the chest cavity),
and the right front chest in the second intercostal space where the
spent bullet lodged in
the sub-cutaneous tissue (under the skin).
The gunshot wound tract was from the left back to the right front and
downwards.
[7]
The
hearsay evidence contained in the witness statement made by the late
Mr. William Mosete to Capt. Khalushi on 1 April 2008, was
admitted as
evidence in terms of
s. 3(1)(c)
of the
Law of Evidence Amendment Act
45 of 1988
before the state closed its case (exhibit ‘G’).
He was according to Solly and according to his statement also an
eyewitness
to the incident. It appears from the statement that
William was 41 years old and employed by Tara Hospital, Sandhurst in
the capacity
of property caretaker at the time when he made it. The
statement reads:
‘
On Wednesday
2
nd
May 2007 at about 19:45 I was in the Park with Solomon Mahtomola
Mathaba. Solomon was selling liquor. The late Bopape Daniel
was
drinking some beers with his friends. Phuti Alpheus Motlala arrived
and called the late Bopape Daniel about hundred meters
(100 m) from
the place were sitted
(sic)
.
I didn’t hear what they were discussing with the deceased
Bopape Daniel Matome.
After a short time the same Phuti
William Matlala came driving a car (Jetta). He parked his vehicle
next to us. He got out of
his vehicle with a firearm in his hand.
He instructed the deceased to get into the boot of his car. The
deceased refused to get
into the boot. He stood up from where he was
with the intention to run away. Phuti Alpheus Matlala shot two
bullets to the deceased.
The deceased ran away for a distance after
he was shot and fell down.
After the shooting
Phuti Alpheus Matlala said to us that he was going to Morningside
Police Station to report the matter. Solomon
Mathaba took me with
his car and he dropped me where I stay.’
[8] These are my
reasons for the admission
in
evidence of William’s witness statement. This being a
criminal
trial
I was mindful of the caution that ‘a Judge should hesitate long
in admitting or relying on hearsay evidence which plays a
decisive or
even significant part in convicting an accused, unless there are
compelling justifications for doing so.’ Per
Schutz, JA in
S
v Ramavhale
1996
(1) SACR 639
(A), at p 649 d – e. The true test for the
evidence to be admitted is ‘whether the interest of justice
demands its
reception.’
S
v Shaik and Others
[2006] ZASCA 105
;
2007
(1) SA 240
(SCA), at p 299C. The
nature
of the evidence
relates to an eyewitness account of the events at the park on the
evening in question. The account incriminates the accused.
I should
mention that the accused’s version foreshadowed in the
cross-examination of Solly and of Capt. Khalushi is a denial
that
William was present at the park at the time of the incident. It was
suggested to Capt. Khalushi that Solly and William discussed
the
matter before their statements were made, but Solly was not
confronted with such suggestion. These are, however, issues that
should be determined on the totality of the evidence. The
purpose
for which the state sought the admission of the disputed statement
was essentially to strengthen the state case by corroborating
material aspects of the evidence of the only eyewitness who testified
at the trial. An accused may, of course, in terms of
s 208
of the
Criminal procedure Act 51 of 1977, be convicted of any offence on the
single evidence of any competent witness. The
probative
value of the disputed statement
depends on the credibility of William at the time of making the
statement. Capt. Khalushi testified that William, the deceased,
and
the accused were unknown to him. The statement was taken in his
office. Only he and William were present. They communicated
in
Sepedi, which was William’s language. Capt. Khalushi wrote
down in English what William had said to him. He read it
back to
William after it had been taken and William confirmed his
satisfaction with the content thereof. William signed the statement
and it was commissioned by Capt. Khalushi. It is accepted on the
unchallenged evidence of Capt. Khalushi that the statement accurately
reflects what William told Capt. Khalushi. Corroboration and
guarantees for the reliability of the contents of William’s
statement were to be found in the evidence of Solly and, most
importantly, in the medical evidence and opinions of Dr. Jessop.
William’s statement is in all material respects corroborated by
the evidence of Solly. Dr. Jessup expressed the opinion
that the
gunshot wound sustained by the deceased – from the left back to
the right front and downwards – is consistent
with the the
deceased turning and running away. The evidence under
consideration seemed reliable. This conclusion was only
based on the
evidence presented by the end of the State case. The
reason
why William was not called as a witness
was because he had died of natural causes on 15 September 2009
(exhibit ‘F’). The aspect of
prejudice
to the accused which the admission of the hearsay could entail
was not a consideration in this instance that militated against its
admission. Solly’s evidence and that contained in William’s
statement are essentially similar and Solly was cross-examined on
behalf of the accused. The conflicting accounts of the state
and of
the defence were also put to Dr. Jessop. I accordingly concluded
that it would be in the interests of justice to admit
William’s
statement in evidence.
[9] The accused
testified that on the evening in question he arrived at the park in
his motor vehicle to buy cigarettes from Solly.
It was around 19h45.
The accused parked his motor vehicle about 8 metres from where the
incident took place. Solly, his wife,
their child, Zoliswa, and the
deceased were sitting around a fire under a tree. When he arrived he
overheard the deceased saying:
‘There he is.’ The
deceased approached the accused and called Zoliswa to accompany him.
The deceased appeared drunk
and aggressive. He swore at the accused
and threw a bottle at him. Zoliswa did not say anything. The
accused stepped backwards.
When the deceased reached the accused and
was next to his left side, the accused pushed the deceased with his
left hand or left
forearm against the chest away to the side. The
accused retreated further and pulled out his firearm with his right
hand. The
deceased was about one and a half metres away from the
accused and on his left side and Zoliswa was about two and a half
metres
away from him on his right side when the accused fired a first
shot. This happened about five metres away from the tree where the
deceased and his friends had sat earlier. The accused noticed that
the deceased ‘was pulling something from his waist (the
front
part of his trousers). He retreated further and fired another shot
into the ground right between the deceased and Zoliswa
who were at
that stage about two and a half metres away from each other and
facing the accused. The surface was even or level
grass. The
deceased turned around and ran towards a tree where he picked up a
plastic bag and ran away. Zoliswa also ran away.
The time lapse
between the two shots was about fifteen seconds. The accused got
back into his motor vehicle to go home. On the
way he changed his
mind and decided to report the matter to the Morningside Police
Station. He accompanied police officers to
the scene of the
incident. The deceased was lying on the ground approximately 60
metres away from where the accused fired the
shots.
[10]
The
accused did not make a favourable impression upon us as a witness.
There are material contradictions in his evidence and between
his
evidence and what had been put by his counsel to state witnesses.
Other material aspects of his evidence were not put to state
witnesses.
[11] The accused’s
initial evidence in chief that he pushed the deceased away before he
fired the first shot is contradictory
to what was put to Solly when
he was cross-examined. It was put to him that the deceased shouted
at him and threw beer bottles
at him when he approached to buy
cigarettes; that the deceased and Zoliswa approached him; that he
retreated while they were
approaching him and he told them to stop;
that he drew his firearm and fired a warning shot into the ground;
that it then appeared
to the accused as if the deceased drew
something from his belt while he proceeded towards the accused; that
the accused pushed
the deceased away with his left hand; and that he
then fired a second warning shot into the ground. When the
contradiction was
brought to the attention of the accused while he
was still testifying in chief, he replied that he fired the first
shot before
he pushed the deceased away and he then changed his
evidence to that he pushed the deceased to his side before he fired
the first
shot.
[12
] Under
cross-examination the accused said that he did not say anything to
the deceased and Zoliswa. He was confronted with his
version that
was put to Solly that he told them to stop while they were
approaching him. He then changed his evidence by saying
that he
enquired from them what they were trying to do. Later on under
cross-examination he said that he enquired this from them
after he
had fired the first shot. Under re-examination he said that he
enquired from them what they intend to do before he fired
the first
shot.
[13
] The
accused vacillated between a statement of fact, namely that he
noticed that the deceased was taking out something from his
waist,
and one of perception, namely that it appeared to him ‘as if’
the deceased was taking something from his waist.
The accused,
however, did not see anything in the hand of the deceased, neither
before nor after he fired the second shot.
[14]
The
accused testified that on his way home he decided to report the
matter to the Morningside police station. He denied that he
told
Solly and the others that he was going to the police station to
report the matter. Yet, Solly’s evidence that the accused
told
them that he was going to report the matter to the police was not
challenged when he was cross-examined.
[15]
The
accused denied any friendship between him and Solly or that they ever
visited each other as friends. He testified that he was
merely a
customer of Solly. Yet, the evidence of Solly that he considered the
accused as a friend since the year 2000 and that
they used to visit
each other was not challenged when he was cross-examined.
[16]
The
unchallenged evidence of Solly is that there was never any animosity
between him and the accused. But under cross-examination
the accused
suggested otherwise and referred to an incident when Solly had told
him to leave the place where Solly is trading since
the accused
according to Solly was taking customers away from him. Solly was not
confronted with this when he was cross-examined.
[17
] The
accused denied that William was present at the time of the incident.
He testified that William approached him at his residence
around May
2008 ‘to confirm’ that he was not at the scene and ‘to
apologise’ for having become involved
in the matter although he
was not present when it happened. William told him that a police
officer promised them money. He promised
the accused that he would
pay him R15, 000.00 if a court finds him guilty, because he was sorry
about his actions. William told
the accused that Solly, George,
Zoliswa, and he ‘held a meeting’ or meetings when they
discussed this matter. The
accused called his neighbour, Mr. SE
Skokota, to witness what William had said to him and William repeated
what he had told the
accused in the presence of the neighbour. The
accused then asked William to leave, which he did. The accused’s
version
in this regard was confirmed by Mr. Samuel Skokota when he
testified on the accused’s behalf.
[18
] We
find it improbable that William, who the accused testified he only
knew by sight from the area where they resided and that
they were not
friends, would have gone to the accused and made such
self-incriminating disclosure and undertaking to him. The
allegations of meetings that were allegedly held by Solly, of
collusion between
inter
alia
Solly,
William, and a police officer, and of a police officer who promised
them money were not put to Solly when he was cross-examined.
Such
allegations were also not put to Capt. Khalushe when he initially
testified. He is the only investigating officer in this
matter and
he did not have an assistant in the investigation. Such allegations
were only put to him when he was recalled after
the close of the
accused’s case. They were denied by him.
[19
] The
accused testified that he was approached by Capt. Khalushe at his
residence a week after he was released on bail. On this
occasion
Capt. Khalushe made what amounts to a corrupt proposal to him. This
was not put to Insp. Khalushe when he initially testified
and the
accused’s attempt at explaining why Capt. Khalushe was not
confronted with these allegations is not plausible. He
said that he
told his first attorney about this. He did not tell his second
attorney about this, because he thought these aspects
were recorded
in the documents that were handed over to his second attorney. The
accused, however, has only been represented by
one counsel and he
testified that he consulted with her a number of times and he had
adequate opportunity of telling her everything
that he needed to tell
her. The allegations relating to Capt. Khalushe’s alleged
corrupt approach to the accused were only
put to him when he was
recalled after the close of the accused’s case. He testified
that he had been an investigating officer
for about 13 years. He did
not know the deceased, the accused, or any of the other state
witnesses. He investigates about five
new murder cases per month.
The present matter was one in the ordinary course. He denied the
accused’s allegations of corrupt
and improper conduct on his
part. He testified that he only attended at the accused’s
residence to confirm his address.
The only occasion upon which he
heard of these allegations was here in court. The alleged corrupt
approach occurred almost three
years ago. Even though the accused
reported the refusal of Capt. Khalushe to hand back his identity book
to Capt. Khalushe’s
Station Commander, he did not report Capt.
Khalushe’s alleged corrupt conduct. This he did not do despite
his firm belief
that criminals should be brought to book and anything
suspicious should be reported. His explanation for not having laid a
charge
against Capt. Khalushe, namely that he thought that Capt.
Khalushe would come back to him and that he was waiting for more
evidence,
is simply not plausible.
[20]
The
accused testified that he had seen the deceased once before the
incident when the deceased accompanied by
inter
alia
Zoliswa
tried to sell him a computer at the sports centre at the park about
four to five months prior to the date of the incident,
and he had
otherwise seen Zoliswa about five or six times when he bought
cigarettes from Solly. The accused testified that he
enquired from
the deceased from where he had obtained the computer. The deceased
was unable to tell him and the accused accordingly
informed a
security guard about the deceased and those who were in his company.
The accused ascribed the deceased’s aggressiveness
towards him
on the evening in question to this incident. Solly’s
unchallenged evidence was that he had frequently seen the
accused and
the deceased in each other’s company.
[21] I have
mentioned that Dr. Jessup expressed the opinion that the gunshot
wound sustained by the deceased – from the left
back to the
right front and downwards – is consistent with the state
version of the deceased turning and running away. She
also expressed
the opinion that the gunshot entrance wound sustained by the deceased
is inconsistent with the version of a
ricochet
bullet. The deceased sustained a typical or common gunshot entrance
wound. One with irregular or a-typical features is
consistent with a
ricochet bullet entrance wound since the bullet is already deformed
before it hits the body.
[22] Approaching
the evidence of Solly with the required caution that should be
applied to the evidence of a single witness, we
have no reservation
in finding on the totality of the evidence that he was a credible
witness and that his evidence is satisfactory
in all material
respects and reliable. His evidence is corroborated by the medical
evidence and opinion expressed by Dr. Jessup.
Our conclusion with
regard to the evidence of Solly remains unaltered whether or not any
weight is attached to the hearsay evidence
contained in the statement
of William. Capt. Khalushe was an impressive witness and his
evidence is reliable.
[23] The totality
of the evidence, in our judgment, proves beyond reasonable doubt that
the accused gave a false explanation of
the fatal assault that he
committed on the deceased. He attended at the park twice. He was
neither attacked nor threatened.
When he arrived on the second
occasion with his motor vehicle his main aim was to deprive the
deceased of his liberty. He was
armed with a firearm. The
inescapable and only reasonable inference drawn from the accused’s
conduct and from all the circumstances
in which the crime was
committed is that when the accused fired the second shot at or in the
direction of the deceased at a stage
when he was trying to get away
from the accused’s threatening deadly force, the accused
foresaw the possibility of his act
resulting in death to the
deceased, and he persisted in it, reckless of whether death ensues or
not. He acted with
dolus
eventualis
.
His guilt of the murder of the deceased has on the totality of the
evidence been proved beyond reasonable doubt.
[24]
In
the result the accused is found guilty of the murder of the late Mr.
Daniel Matome Bopape.
P.A. MEYER
JUDGE OF THE HIGH COURT
31
March 2010