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2010
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[2010] ZAGPJHC 26
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S v Kunene (A619/2009) [2010] ZAGPJHC 26 (28 April 2010)
IN THE SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
(REPUBLIC OF SOUTH AFRICA)
CASE NO: A619/2009
DPP REF: JAP2006/0269
DATE :15 MARCH 2010
In the matter between:
KUNENE,
RICHARD
Appellant
A
nd
THE
STATE
Respondent
JUDGMENT
WILLIS J:
The appellant appeals against his
convictions and sentence on a count of robbery with aggravating
circumstances, kidnapping, murder
and unlawful possession of arms
and ammunition. He received an effective sentence of life
imprisonment.
I have had the benefit of reading
Halgryn AJ’s judgment in this matter. I regret that I am
unable to agree with him. I
wish, however, to commend him for his
thorough analysis of the evidence as well as the law.
To my mind the following facts are
relevant:
The deceased’s nephew,
Motusi Petlele, gave evidence that five men, of whom the appellant
was one, intruded upon the deceased’s
home on 12
th
May 2003;
Motusi Petlele had the opportunity
to observe the appellant for about 20 to 30 minutes;
Members of the group threatened to
kill the deceased;
The deceased’s hands and
feet were tied up with hanger wire by the intruders;
Members of the group took the
deceased away in his motor vehicle;
The appellant was not seen at the
home of the deceased after he had been taken away in the motor
vehicle;
The deceased’s corpse was
found two days later in a state of decomposition;
The
postmortem
report shows that the deceased was found with his hands and feet
tied with wire;
The cause of the deceased’s
death was “bullet wounds of brain, lung and spine”;
Near the corpse of the deceased
were found spent cartridges which a ballistics expert determined
had been fired from a firearm
found at the home of the appellant in
the possession of the appellant’s brother on or about 29
th
May 2003;
A cellular telephone which belong
to the deceased and had been taken from him in the robbery was also
found in the home of the
appellant in the possession of the
appellant’s brother;
The appellant was arrested on 12
th
June, 2006;
Motusi Petlele identified the
appellant at an identification parade held on 14
th
July 20006.
Although the question of so-called
hearsay evidence by Inspector Jones, who found the cellular
telephone and the firearm at the
home of the appellant, absorbed
some of the attention of De Jager AJ, the trial judge and Halgryn
AJ, it seems to me that all
that really occurred was that Inspector
Jones was giving an explanation for how it came about that he went
to the home of the
appellant and conducted a search. Ultimately, how
it came about that he went to the appellant’s home is
irrelevant to the
determination of the issues. What is relevant (and
is certainly not hearsay) is that he found the cellular telephone
and the
firearm at the appellant’s home in the possession of
the appellant’s brother.
Mr
Madondo
,
counsel for the appellant, who also had the advantage of appearing
for him in the trial, accepted that the honesty of Motusi
Petlele
identification of the appellant was not in issue. What is in issue
is the reliability of that identification. Halgryn
AJ also seems to
accept that this is the position. I ask myself, “What are the
chances that Motusi Petlele would mistakenly
and at random point out
a person in whose home and in the possession of his brother it just
so happens were found the firearm
from which the bullets which
killed the deceased were fired as well as the cellular telephone
which belonged to the deceased?”
In my opinion, there is no
reasonable possibility that this could be so. Moreover, while I
accept that the fact that the deceased
was found with his hands and
feet tied with wire as described by Petlele, does not corroborate
Petlele’s identification,
it does corroborate the reliability
of his powers of observation. If the evidence is viewed in its
totality, there can be no
reasonable doubt that, in the words of
Leon J in
S v Ganie
,
1
the evidence of the
single witness was more than adequately corroborated to justify the
conviction. The “totality approach”
of Nugent J, as he
then was, in
S v Van der
Meyden
2
where he emphasises the
importance of looking at the totality of the evidence, very much
commends itself in a case such as this.
That
judgment of Nugent J has received the unanimous approval of five
judges in the Supreme Court of Appeal. (See
S
v Van Aswegen
3
.)
(See also
R
v Hlongwane
4
;
S v Hlapezula &
Others
;
5
S v Khumalo &
Others
6
.)
In my opinion, there can be no
serious criticism of Petlele for failing to mention in his statement
to the police that he had
previously seen the appellant with the
deceased in a group of people at a braai or that he failed to be
more specific about the
role of the appellant.
When the evidence is viewed in its
totality, it is clear that the appellant was part of a group poof
people who intended to kill
the deceased and did so. At very least,
the appellant is guilty of the crimes as an accomplice on the basis
of the doctrine of
common purpose. In the case
R v Jackelson
7
the following is said by Juta JA “All persons who knowingly
aid and assist in the commission of a crime are punishable
just as
if they had committed it.”
8
Later he says “but if a person assists in or facilitates the
commission, if he stands by ready to assist although he does
no
physical act as where a man stands outside a house while his
fellow-burglar breaks into the house (per Coleridge CJ in
R
v Coney
8 QBD at
569,570), if he gives counsel or encouragement, or if he affords the
means for facilitating the commission, if in short
there is any
co-operation between him and the criminal, then he ‘aids’
the latter to commit the crime”.
9
This was approved in
S v
Williams en ‘n Ander
10
and in
S v Khoza
.
11
In the
Williams
case Joubert JA, giving the judgement of the court said at 63 B “
’n Medepligtige vereenselwig hom bewustelik met
die pleging
van die misdaad deur die dader of mededaders deurdat hy bewustelik
behulpsaam is by die pleging van die misdaad of
deurdat hy
bewustelik die dader of mededaders die geleentheid, die middele of
die inligting verskaf wat die pleging van die misdaad
bevorder.”
12
Joubert JA goes on to say at “Die medpligtige se bewustelike
hulpverlening by die pleging van die misdaad kan uit ’n
doen
of late bestaan. Laasgenoemde is bv die geval waar ’n nagwag
versuim om alarm te maak omdat hy hom bewustelik met
die pleging van
’n inbraak by die gebou wat hy moet oppas, vereenselwig”
13
.
In the
Khoza
case (supra), Corbett JA, as he then was, approved these
observations of Joubert JA although he lamented the fact that there
would not appear to be any word in English which conveniently
conveyed the concept of “medepligtigheid”.
14
Although Corbett JA’s judgement in the
Khoza
case was the minority
judgement, in the case of
S v Sefatsa and
Others
15
,
Botha JA records at 900B that although he had a difference of
opinion with Corbett JA in the
Khoza
case on the liability of an accused ‘ joining in ’ in an
assault upon a person who has already been fatally wounded,
he was
generally in agreement with his views on common purpose.
In the
Sefatsa
case (supra), five
judges unanimously approved the following views expressed by the
learned authors Burchell and Hunt: “Association
in an illegal
common purpose constitutes the participation the
actus reus
.
It is not necessary to show that each party did a specific act
towards the attainment of the joint object. Association in the
common design makes the act of the principal offender the act of
all” and “Moreover, it is not necessary to show
that
there was a causal link between the conduct of each party to the
common purpose and the unlawful consequence.”
16
A
common purpose may be manifested simply by conduct.
17
Insofar as the State’s
failure to call another witness at the house of the deceased is
concerned, in my opinion, the situation
is fundamentally
distinguishable from that in
S
v Teixeira.
18
In the first place
counsel for the appellant was counsel in the trail and confirmed
that he had been given that witnesses statement.
Secondly, and
perhaps more importantly, since the Constitutional Court decision in
Shabalala and Others v
Attorney- General, Transvaal and Another
19
the State is required to make the contents of the police docket
available to an accused person’s legal representative prior
to
the trial. This court is well aware that this practice of making the
police docket available to an accused person’s
legal
representative has prevailed in this division for many years.
In regard to the possession of the
firearm and ammunition, I asked Mr
Madondo
the following: “If
a group of people intrude upon a person’s home with the clear
intention of killing him, at least
one of them possesses a firearm,
the deceased is in fact killed with a firearm and that firearm is
found at the home of the appellant,
is it reasonably possible to
infer that the appellant had no intention to possess the firearm at
least on a collective basis?”
Mr
Madondo
could give no answer to
this question.
I am satisfied that the appellant
was correctly convicted.
There was no misdirection in regard
to the sentences on counts 1, 2, 4 and 5: 10, 6, 5 and 3 years’
imprisonment respectively.
These sentences, in all the
circumstances, cause me no disquiet whatsoever, In any event, they
will automatically run concurrently
with he sentence of life
imprisonment on count 3 (the murder count). In respect of this
count, not only did the appellant fail
to show any substantial and
compelling circumstances justifying a lesser sentence than life
imprisonment but if one takes into
account his age at the time (39
years’ old), the overall circumstances of the crime and his
string of relevant previous
convictions involving attempted murder,
robbery, assault, theft and unlawful possession of arms and
ammunition, I can see no
basis upon which this court can interfere.
I should mention that I can see no logic in the proposition that
time spent awaiting
trial can be a relevant consideration where life
imprisonment otherwise seems to be the appropriate sentence.
The appellant’s appeal
against conviction and sentence on all counts is dismissed.
____________________
N.P. WILLIS
Judge of the High Court of South
Africa
I agree with the order of Willis J
____________________
D.S.S. MOSHIDI
Judge of the High Court of South
Africa
HALGRYN AJ:
Introduction
In the late afternoon of the 12
th
of May 2003, at around 19:00 to 20:00, yet another law abiding
citizen of our land fell victim to the hands of criminals, who
saw
fit to violently and forcibly kidnap one Tshepang Petlele, (“the
deceased”), attorney at law, from his home,
passionlessly
stick him into the boot of his car with his hands and feet tied
together with hanger wire, ultimately shoot him
in his head, lung
and spine and as for good measure, poured some flammable liquid over
his entire body, set him alight and left
his mutilated and charred
body in the Schoeman Cemetry, next to the Kathlehong Road.
This heinous crime was investigated
and led the State to prosecute certain individuals, including the
Appellant herein, successfully,
in the Court
a
quo
, where De Jager AJ
found the Appellant guilty on several counts, including kidnapping
and murder and sentencing the Appellant
to an effective life long
imprisonment.
Dissatisfied with the convictions
and sentences, the Appellant sought leave to appeal from the Court
a
quo
, who granted the
application, both against the convictions and sentences. It is this
appeal which serves before us.
20
In respect of the appeal against
the convictions, the main issue which we were called upon to
adjudicate herein, in my view, involves
the question of the
identification of the Appellant by a single witness.
21
The Charges, Summary of
Substantial Facts and formal Admissions
The charges levelled at the
Appellant were as follows:-
“
ROBBERY WITH
AGGRAVATING CIRCUMSTANCES AS DEFINED IN SECTION 1 OF ACT 51 OF 1977,
READ WITH SECTION 51 OF ACT 105 OF 1997
In that upon or about 12 May 2003
and at or near 27 Dereham Street, Mulbarton, the accused unlawfully
and intentionally assault
Tshepang Petlele and did then and there
with force and violence, take his motor vehicle to wit a Toyota
Cressida, registration
number LRH802GP, television set, hi-fi music
system, clothes
22
and three cell phones, his property in his lawful possession and did
thereby rob him of the same, aggravating circumstances as
defined in
Section 1 of Act 51 of 1977 being present.
KIDNAPPING
In that on or about and at or
near the place mentioned in count 1, the accused unlawfully and
intentionally deprived Tshepang Petlele
of his liberty by restraining
and detaining him and removing him from House Number 27 Dereham
Street, Mulbarton to an unknown place
where he was further detained
for some time.
MURDER READ WITH SECTION 51
OF ACT 105 OF 1977
In that during or about the
period 12 to 14 May 2003 and at or near Katlehong in the district of
Germiston, the accused did unlawfully
and intentionally kill Tshepang
Petlele, a male person.
CONTRAVENTION OF SECTION 3
READ WITH SECTIONS 1, 103, 117, 120(1)(a) AND 121 READ WITH SCHEDULE
4 OF ACT 60 OF 2000 – UNLAWFUL
POSSESSION OF A FIREARM
In that upon or about and/or near
the places mentioned in counts 1 and 3, alternatively upon or about
28 May 2003 at or near 529
Nucla Section Katlehong, the accused did
unlawfully had in his possession a firearm, the make and calibre of
which is unknown to
the State, without holding a license, permit or
authorisation issued in terms of the Act to possess the said firearm.
CONTRAVENTION OF SECTION 90
READ WITH SECTIONS 1, 103, 117, 120(1)(a) AND 121 READ WITH SCHEDULE
4 OF ACT 60 OF 2000 – UNLAWFUL
POSSESSION OF AMMUNITION
In that on or about the date and
at or near a place mentioned in counts 1 and 3 alternatively on or
about 28 May 2003 at or near
592 Ncula Section Katlehong the accused
unlawfully had in their possession ammunition, the number and calibre
of which is unknown
to the State, without being the holders of:
A license in respect of a firearm
capable of discharging that ammunition;
A permit to possess ammunition;
A dealers license, manufacturers
license, gunman’s license, import, export or a transit permit
or transporters permit issued
in terms of this Act; or
Without being authorised to do
so.”
The
“
SUMMARY
OF SUBSTANTIAL FACTS
”
reads as follows:-
“
On 12 May 2003, the
accused robbed the deceased of his motor vehicle and other household
items in Deraham Street, Mulbarton.
The accused also kidnapped the
deceased and took him to the Katlehong area.
The deceased’s corpse was
found burnt at Katlehong cemetery on 14 May 2003. There were empty
bullet shells around his body.
The deceased died of the bullet
wounds of brain, lungs and spine.
The State alleges that at all
material times the accused and his companion(s) acted in furtherance
of a common purpose to commit
the offences wherefore they are
herewith indicted. At this stage it is not known precisely when or
where the common purpose
was formed or who all the parties thereto
were, but it is alleged that it was in existence, at the least
immediately prior to,
and for the duration of the commission of the
said crimes.”
A list of admissions in terms of
Section 220 of Act 51 of 1977
23
was agreed to and marked Exhibit A. It reads as follows:-
“
1. That the deceased
person is Tshepang Petlele.
That the deceased died on 14 May
2003 as a result of a bullet wound of the brain, lung and spine
which he sustained at Schoeman
Cemetery along the B91 Road,
Katlehong, in the district of Alberton.
That the deceased sustained no
further injuries from the time of death on 14 May 2003 until a post
mortem examination was conducted.
That Dr Jan George Pieterse
conducted a post mortem examination on the body of the deceased on
15 May 2003, the serial number
as reflected at 1022/2003 and the
doctor recorded his findings on Exhibit B5.
The correctness of the facts and
findings of the post mortem examination as recorded in Exhibit B by
Dr Jan George Pieterse is
accepted as being correct.
That Exhibit C is the photo
album taken by Inspector Chris Wessels.
Exhibit C contains a key of the
photo plan and is a key of the points accepted as correct.
Exhibit C further indicates that
five (5) spent cartridges were collected at the scene, sealed with
official seal number 1712,
marked Germiston PKIS421/05/03 and were
handled at the Pretoria Forensic Science Laboratory.
The photo album in Exhibit C was
photographed at Schoeman Cemetery along the P91 road, Katlehong, in
the district of Alberton.
That Exhibit D is a ballistics
report as compiled by Sergeant P S Mojela in terms of Section
212(4)(a) and 212(8)(a) of Act 51
of 1977 and its entire content is
accepted as correct.”
8. During the course of the trial in
the court
a quo
further admissions were agreed to and recorded in a document marked
Exhibit A1. It reads as follows:
“1. That
Inspector Chris Wessels found five empty cartridges at Schoeman
Graveyard on the 14
May 2003 near
the deceased body.
That the abovementioned
cartridges were sealed and sent to forensic laboratory in Pretoria
by Inspector Geldenhuys with official
seal number 1712.
That Exhibit “D” is
the ballistics report as compiled by Sergeant B S Mojela in terms of
Section 212(4)(a) and to
212 (8)(a) of Act 51 of 1977 and its entire
content is accepted as correct.
That Exhibit “H” is
the ballistic report as compiled by Inspect P H Steyl in terms of
Section 212(4)(a) of Act 51
of 1977 and its entire content is
accepted as correct.
The ID parade procedure is
admitted as correct the only dispute is that the accused alleges
that the investigating officer, Captain
Dlamini was present during
the ID parade.”
The evidence
The evidence, which was lead in the
Court
a quo
is comprehensively recorded in the Judgment by De Jager AJ. It is,
for present purposes, not necessary to summarize all of the
evidence
in as much detail herein. It was and it remains the Appellant’s
defence that he did not commit the offences he
was charged with and
that on the day in question, he was nowhere near the deceased’s
house.
The veracity of this defence
depends on whether the State proved beyond a reasonable doubt that
the Appellant had been reliably
identified as the guilty person.
To this end, the State relied,
inter alia
,
but largely, on the evidence of a single witness, one Motusi Petlele
(“Petlele”), 19 years old at the time he gave
his
evidence and 14 years old when he witnessed the incident, forming
the subject matter of this appeal.
Petlele’s evidence went along
the following lines:-
On the 12
th
of May 2003, he was at the deceased’s house where he resided
at the time.
The deceased, a practising
attorney, was his uncle.
One Thulisile,
24
his uncle’s then girlfriend, was also in the house, feeding
the child that she had born from her relationship with the
deceased.
At some stage, Thulisile unlocked
the kitchen door and later, three men entered the house.
Two of the three men went straight
into the deceased’s bedroom and the third took Petlele to the
deceased’s bedroom
whilst pointing a firearm at him.
In the deceased’s bedroom,
Petlele found the deceased lying on the floor with his hands and
feet tied with hanger wire.
Petlele’s hands were also
tied up with hanger wire and he was made to sit down.
After he was made to sit down, a
fourth man entered the deceased’s bedroom with Thulisile and
her child. She was made
to sit on the bed.
The men accused the deceased of
representing an accused in a rape case involving a girl who was the
child of one of these men.
A fifth man then entered the
deceased’s bedroom and the men started a search for the
deceased’s firearm.
Unable to find the firearm, the
men turned their attention to the deceased who was asked where the
firearm was.
Frustrated at the deceased’s
reply that the firearm was at the Bethani Police Station, they
started kicking him in his
stomach and ribs as he laid helpless on
the floor, still tied up with hanger wire.
When asked about the firearm,
Petlele also told the men that the firearm was at the police
station, prompting the men to threaten
to kill him, as they accused
him of lying.
After several unsuccessful
attempts at starting the deceased’s Toyota Cressida, the men
finally dragged the deceased to
the vehicle, put him into the boot
thereof and drove off.
25
Thulisile told Petlele to wait for
15 minutes and then phoned her mother, who in turn “summoned”
the police.
Petlele also stated that he saw
two of the five men (not the Appellant and his co-accused, in the
court
a quo
)
earlier on that day, in what he referred to as a 20/20 Golf and
travelling with them was Thulisile who, according to him,
“…
was
trying to hide from the child”.
26
The two men in the 20/20 Golf were
part of the group of five men who came and took his uncle away.
About a year and one month later,
on the 14
th
of July 2006, he attended an identification parade at which he
identified the Appellant as one of the five men who took his
uncle
away on the 12
th
of May 2003.
Petlele had in fact seen the
Appellant before. This was at a braai at the deceased’s
house, prior to the incident under
consideration, when the deceased
was not present; but Thulisile was.
On the day of the braai, the sun
was shining and Petlele had about six hours to observe the
Appellant.
On the day of the incident, some
time after the braai, Petlele had about 20 to 30 minutes to observe
the Appellant whilst there
was a light on in the house.
During cross-examination, it was
put to Petlele that in his statement, which he made to the police
the very next day after the
incident, he did not mention at all
that he had observed the Appellant at a braai on an earlier
occasion.
Petlele replied to this that he,
at the time of making his statement, responded only to what he was
asked, and these questions
were restricted to what happened during
the incident.
Mr Mquhulu, representing the State
at the trial in the Court
a
quo,
, was quick to
point out that in another statement which Petlele made to the
police after the identification parade, (a year
and one month
later), he did mention this fact.
Petlele was criticised for not
informing the police, when he made his first statement, of the fact
that he “knew”
the Appellant.
Petlele could not remember how the
Appellant was dressed on the day of the braai or on the date of the
incident and could not
mention any identification features, but
baldly states that he does remember him.
How it came about that the
Appellant and his co-accused, in the court a quo,
27
were arrested and charged, was, by way of summary, as follows.
Inspector Heinrich Reinhard Jones
(“Jones”), at the time of his evidence, an Inspector in
the employ of the South
African Police Service, at Worcester
Detective Branch, testified that with the assistance of printouts
from MTN, he established
that the number of a cell phone which was
stolen during the robbery under consideration was still being used.
He phoned the
person in possession of the telephone and under the
guise that this person had won a competition, met him at the Tsokosa
Police
Station. This person was Christopher Mhlope, (“Mhlope”),
who had since passed away.
Jones produced a statement by
Mhlope but it was ruled inadmissible after an objection, by the
Court
a quo
.
28
The actual ruling which the Court
a
quo
made is somewhat
curious. The Court ruled:
“
How they arrived at the
premises would be irrelevant, what is relevant is in fact what they
saw. For this reason I rule that the
hearsay evidence would not be
admitted in the present circumstances. That does not mean that this
is any final order. If in the
event it is found that it will be
relevant the court will revisit its ruling.”
29
In the Court
a
quo’s
final
Judgment, the following was recorded:
“…
the court ruled
that the probative value of the statement was in the court’s
view of little importance and did not warrant
the breaking of the
rule on hearsay evidence.”
30
Although I am left in some doubt as
to the full effect of the Court
a
quo’s
Order in
this regard, I accept, for the purposes of my Judgment that the
effect was that the hearsay evidence of Mlhope has been
ruled
inadmissible in terms of a final Order, against which lies no
counter-appeal.
This is significant, as I propose
not to take into account at all, the contents of Mhlope’s
statement and any references
to hearsay evidence of what Mhlope may
have told Jones. This view I take herein, may well be the
determining factor herein.
Although I do not express any
definitive view on the subject, I am somewhat surprised, with
respect, at the exclusion of this
hearsay evidence. I would have
thought it highly relevant and admissible in terms of section 3 of
Act 45 of 1988 as, on the face
of it, it appears that it could have
constituted extremely significant circumstantial evidence, which may
have provided sufficient
corroboration, to accept Petlele’s
evidence.
I reiterate that I will not have
any regard to that evidence which has been ruled inadmissible.
31
It is however so, that what transpired as a result of the
inadmissible hearsay evidence, at No 592 Ncala Section Katlehong, on
an unknown date,
32
was indeed admissible and relevant in the Court
a
quo
and also for the
purposes of this appeal.
This is what happened as a result
of the inadmissible hearsay evidence. Jones attended the premises
with the assistance of other
officers, which turned out to be the
place where the Appellant lived, with others. Jones knocked on the
door but nobody answered.
The officers who assisted him were at the
back of the house. The door was a wooden door with a little piece
of glass in the
middle and he was able to look through this door
window. He noticed a person getting onto a cupboard and hiding
something. He
did not know what it was at that stage. He kept on
knocking and after a while accused no 2, opened the door. His name
is Sipho
Kunene, brother of the Appellant.
Jones enquired about the
Appellant’s whereabouts and accused no 2 informed Jones that
his brother was not at home.
Jones asked permission to search
the house and with the permission of accused number 2, Jones went
straight to the place where
he saw the person hiding something.
There he found a Norinco pistol.
Jones also found the identity book
of the Appellant in that house. It became common cause that the
Appellant lived there, with
others.
Jones arrested accused number 2 for
unlawful possession of an unlicensed firearm and ammunition.
The Appellant was also thereafter
arrested, the exact facts and circumstances surrounding his arrest,
not being material herein.
The legal position relating to a
defence of an alibi
In casu,
the
Appellant denies having ever been in the house of the accused and
more specifically on the day of the incident under consideration.
Although the Appellant
understandably
33
did not rely on a specific alibi, his defence is one of not being
there and should be treated the same way as a defence of an
alibi.
If an accused genuinely cannot remember where he was on a specific
day when he is alleged to have committed a crime, then
this must
not, even subconsciously be held against him. This is potentially
difficult for an accused, as opposed to a version
that he was
elsewhere, the veracity of which can be objectively tested.
“
An alibi is a defence that
the accused was somewhere else at the time the crime was committed,
and it thus calls into question the
state’s evidence concerning
the offender’s identity.
Today it is accepted that an alibi is not a kind of special defence
which has to be proved by the defence. The State must prove
that the
accused committed the crime and it must therefore disprove the alibi
;
and the alibi does not create an issue that has to be judged
separately: “The correct approach is to consider the alibi
in
the light of the totality of the evidence in the case, and the
Court’s impression of the witnesses.”
34
(The emphasis is added.)
It is in my view, not inappropriate
or stating the obvious, (regard being had to the peculiar facts of
this case), to approach
this matter ever mindful of the strength of
the presumption of innocence in our Law,
35
to bear in mind that there
is no burden of proof on an accused to prove his alibi
36
and not to loose sight of
the requirement that the State bears the burden of proving each of
the essential elements of the offence
and that there is no onus on
the Appellant to disprove any of them and that the standard of proof
is beyond reasonable doubt.
37
It would not suffice to find that
the alibi of the Appellant, (or otherwise put, the Appellant’s
defence of not being at
the deceased’s house at the time of
the incident), is improbable; it has to be found to be false, beyond
reasonable doubt.
38
Evidence of identification to be
approached with caution
The disputed identification
in
casu
was that of a
single witness. The well known cautionary rule relating to the
evidence of single witnesses thus finds application,
the legal
position in respect of which I deal with hereunder.
Moreover, our Law requires that
evidence of the identity of an offender, generally, be treated with
caution.
But, as our courts have
emphasized again and again, in matters of identification, honesty and
sincerity and subjective assurance
are simply not good enough. There
must in addition be certainty beyond reasonable doubt that the
identification is reliable, and
it is generally recognised in this
regard that evidence of identification based on recollection of a
person’s appearance
can be dangerously unreliable and must be
approached with caution.”
39
“
An acquaintance with the
history of criminal trials reveals that gross injustices are not
infrequently done through honest but mistaken
identifications. People
often resemble each other. Strangers are sometimes mistaken for old
acquaintances. In all cases that turn
on identification the greatest
care should be taken to test the evidence. Witnesses should be asked
by what features, marks or
indications they identify the person whom
they claim to recognise. Questions relating to his height, build,
complexion, what clothing
he was wearing and so on should be put. A
bald statement that the accused is the person who committed the crime
is not enough.”
40
“
When evidence of identity
is that of a single witness, there is of course all the more reason
for caution-the cautionary rule which
applies to single witnesses
must then be taken into account
as
well
.”
41
(The emphasis is added.)
“
Experience has shown that
it is for various reasons very easy for the identifying witness to be
mistaken.”
42
In S v Mthetwa
43
it was said:
“
Because of the fallibility
of human observation, evidence of identification is approached with
some caution.
It
is not enough for the identifying witness to be honest; the
reliability of his observation must also be tested.
This depends on various factors, such as lighting, visibility, and
eyesight; the proximity of the witnesses; the opportunity for
observation both as to time and situation; the extent of his prior
knowledge of the accused; the mobility of the scene; corroboration;
suggestibility, the accused’s face, voice, built, gait and
rest; the result of identification parades, if any; and, of course
the evidence by or on behalf of the accused. The list is not
exhaustive, these factors, or such of them as are applicable in a
particular case, are not individually decisive and must be weighed
one against the other, in the light of the totality of the evidence,
and the probabilities …”
(The
emphasis is added.)
Williamson JA stated:
“
The often patent honesty,
sincerity and conviction of an identifying witness remain, however,
ever a snare to the judicial officer
who does not constantly remind
himself of the necessity of dissipating any danger of error in such
evidence.”
44
The cautionary rule relating to
the evidence of a single witness
The history, development of and the
current legal position relating to the evidence of a single witness
in criminal matters is
authoritatively set out in the work by
Schmidt and Rademeyer.
45
This history of the rule is not
repeated herein, save to state that the rule has developed from
testis unus, testis
nullus
46
,
to where it is today.
The learned authors state the
following:-
“
Briefly, then, the
position is that a finding can be based on the evidence of a single
witness; But such evidence is always treated
with caution,
and
in a criminal matter a conviction will normally follow only if the
evidence is substantially satisfactory in every material
respect or
if there is corroboration.
The corroboration need not necessarily link the accused to the
crime. Failure to attempt to rebut the evidence of a single witness
could be a supporting factor. The evidence can be satisfactory even
if it is open to a degree of criticism. The fact that a single
witness occupies an official position, such as that of a police
officer or a traffic inspector, does not add weight to his evidence.
The need for a cautious approach is increased by the factors set out
by De Villiers JP in the first Mokoena case. It can be increased
by
other factors such as failure to adduce available real evidence (eg.
a packet of dagga). Clearly a court must consider all
the particular
facts of the case in order to determine whether the single witness is
credible. It is important to realise that
the court ought not to
become ensnared in formalism:
“In other words, the
exercise in caution must not be allowed to displace the exercise of
common sense.”
At the end of the day it is the
standard of truth which is decisive.”
47
(The emphasis is added.)
Leon J stated the following:-
“
A court should approach
the evidence of a single witness with caution and
should
not easy convict upon such evidence unless it is substantially
satisfactory in all material respects or unless it is corroborated.
”
48
(The emphasis is added.)
Mere lip service to the above
cautionary rules will not suffice.
“
But a mere pronouncement
that it is taking a cautious approach to the evidence is insufficient
and is the equivalent of non-compliance.
It must be apparent that the
court has indeed treated the evidence cautiously: “What is
necessary is that the judicial officer,
who is the trier of fact,
should demonstrate by his treatment of the evidence…that he
has in fact heeded the warning.””
49
During the deliberations with my
learned Brothers herein, Willis J and Moshidi J, I was reminded of
the approach adopted by Nugent
J, as he then was, in S v Van der
Meyden.
50
In the Van der Meyden decision,
Nugent J held that it would be quite wrong to separate the evidence
in a criminal matter into
compartments and to examine the state and
defence cases in isolation. He stated as follows:-
“
A court does not base its
conclusion, whether it be to convict or to acquit, on only part of
the evidence. The conclusion which
it arrives at must account for
all the evidence.”
51
Nugent J also found as follows:
“
The onus of proof in a
criminal case is discharged by the state if the evidence establishes
the guilt of the accused beyond reasonable
doubt. The corollary is
that he is entitled to be acquitted if it is reasonably possible that
he might be innocent. (See, for
example, R v Difford
1937 AD 370
especially at 373, 383). These are not separate and independent
tests, but the expression of the same test when viewed from opposite
perspectives. In order to convict, the evidence must establish the
guilt of the accused beyond reasonable doubt, which will be
so, only
if there is at the same time no reasonable possibility that innocent
explanation which has been put forward, might be
true. The two are
inseparable, each being the logical corollary of the other.
In whichever form the test is
expressed, it must be satisfied upon a consideration of all the
evidence. A court does not look at
the evidence implicating the
accused in isolation in order to determine whether there is proof
beyond reasonable doubt, and so
too does it not look at the
exculpatory evidence in isolation in order to determine whether it is
reasonably possible that it might
be true.”
52
The approach by Nugent J must be
read with the following dictum in Moshepi and Others v R
(1980-1984)
LAC 57
at 59 F-H, which was approved by Marais JA
53
:
“
That is not to say that a
broad and indulgent approach is appropriate when evaluating evidence.
Far from it. There is no substitute
for a detailed and critical
examination of each and every component in a body of evidence. But,
once that has been done, it is
necessary to step back a pace and
consider the mosaic as a whole. If that is not done, one may fail to
see the wood for the trees.”
The approach by Nugent J, (as read
with the approach by Marais JA), with respect, is undoubtedly
correct, but it does not impact
on our cautionary rules. If
anything, I feel that this holistic approach allows for and
compliments the legal position, as far
as cautionary rules are
concerned.
I propose to follow the aforesaid
approach herein and will endeavour to do so by examining the
evidence by the single witness
herein, Petlele, and attempt to
establish first of all whether his evidence meets the standard of
being “
substantially
satisfactory in every material respect
”.
If I am satisfied that the evidence
by the single witness does not meet this standard, I will then
endeavour to establish whether
there is corroboration of the single
witness’ evidence and more specifically with the emphasis on
being whether there is
corroboration of the identification of the
Appellant.
Analysis of the single witness’s
evidenc
e
Petlele was 14 years old at the
time of the incident and 19 years old at the time of him testifying
in the Court
a quo
.
I am of the view that his youth should also be taken into account in
adopting a cautious approach herein and the fact that a
substantial
period of time had lapsed since the incident and his evidence.
A very noticeable and, for me,
indeed a very troublesome aspect of Petlele’s evidence, lies
in the fact that whilst he appeared
to be very meticulous in his
recall on many aspects, he failed to make any mention at all, (not
even in the slightest), of what
the role of the Appellant was,
during the incident. In point of fact, not a word was said in this
respect during the entire trial
in the Court
a
quo.
Moreover, Petlele failed to point
out what the roles of the two men were during the incident, whom he
had seen earlier on, on
the date of the incident, in the 20/20 Golf.
To illustrate: Patlele testified
that Thulisile went to the kitchen and unlocked the door and that
later:
“…
three
54
men came in”
of
whom
“
Two
of them went straight into Tshepang’s bedroom”
55
and
“
The
third one
came
into the study room.
This
third one
came
and took me out of the study room, took me into the deceased’s
bedroom whilst pointing a firearm at me. After I had
been taken from
the study room into the deceased’s bedroom, on arrival there I
found that the deceased was lying on the floor
with his hands and
legs tied with hanger wire. When I came into that bedroom I was tied
up, my hands were tied up with hanger
wires.”
56
Petlele then went on to testify
that after he was made to sit down in the deceased’s bedroom:
“…
Then there
came a fourth one
now. He came with Thulisile from the dining room and Thulisile came
with the child as well. They then came into the deceased’s
bedroom. After they came into the bedroom Thulisile was made to sit
on the bed. After having come in,
one
of the males
then said deceased had represented an accused person, who was one of
those male’s children in the rape case …”
57
After one of the four men, (who had
at that stage entered the bedroom), made the statement that their
apparent gripe with the
deceased was that he had represented an
accused person who had raped one of the men’s’ daughter,
Petlele was then
specific to say:
“
Thereafter there came
a
fifth one
.”
58
To summarize: Petlele had
meticulously taken care to testify that:
initially
three
men
came in through
the kitchen door,
of whom
two
went straight to the deceased’s bedroom;
and
the
third one
came to
him, where he was in the study, pointing a firearm at him and took
him to the deceased’s bedroom, where he found
the deceased
tied up with hanger wire, by what must have been
the
two men
who went
straight to the deceased’s bedroom;
a fourth man
then entered the bedroom with Thulisile and her child and they came
from the dining room;
after the
fourth
man
entered the
bedroom,
one of the
men
informed them
of their complaint, i.e. that the deceased had represented a rapist
of one of their daughters,
where after
a
fifth man
entered,
and only after
all
five men
were
present in the deceased’s bedroom, they started looking for
the deceased’s firearm.
Petlele testified that:
“
they
asked the deceased where the firearm was.”
59
After the deceased had told the men
that the firearm was at the Bethanie Police Station:
“…
they
then accused him of lying and they started kicking him.”
60
The men then turned to Petlele who
confirmed that the deceased’s firearm was indeed at the Police
Station where after:
“
they
then threatened to kill me, because they accused me of lying.”
61
Petlele continued to testify as
follows:-
“
Thereafter
they
pulled the deceased next to a door that was next to the passage.
They
then asked the deceased as to how his Cressida motor vehicle can be
started. He tried to explain to them as to how they can start
it.
Thereafter
two
of these men
went out.
They
could not get his motor vehicle started and they came back into the
house. The deceased then explained to me as to how this car
can be
started, because
these
men
said they
would be going with Thuli to the car and she is the one who is going
to start it for them.
Two
of these men
took Thuli out of the house and then Thuli came back into the house
with
those two
men
after
having failed to start the car. Thereafter
they
pulled Tshepang in that passage, took him out to the vehicle …
Well, what
they
said is
they
were going to kill him and then
they
got out with him.”
62
Bearing in mind that the
identification of the Appellant was of the utmost importance herein,
I find it very discomforting that
Petlele was unable to
spontaneously tell the Court
a
quo
what the Appellant’s
role was during the incident, to some extent at the very least.
I would have thought it fairly
obvious that an identifying witness under similar circumstances
would have, at the very least,
to some extent told the Court
a
quo,
in what manner the
Appellant partook in the mischief.
This is not asking too much in my
view, e.g.-
was the Appellant one of the
initial three men;
was the Appellant one of the two
men who went directly to the deceased’s bedroom or the one
who came to Petlele in the
study and who took him at gun point to
the deceased’s bedroom;
was the Appellant the one who tied
Petlele’s hands with hanger wire and made him to sit down in
the deceased’s bedroom;
was the Appellant the fourth man
who entered the room with Thulisile;
was the Appellant the one who
informed them of their complaint, i.e. that the deceased had
represented the rapist of one of
their children;
was the Appellant perhaps the
fifth man who entered the bedroom;
was the Appellant one of the men
who kicked the deceased;
was the Appellant one of the men
who threatened to kill Petlele, after he confirmed that the
deceased firearm was at the police
station;
was the Appellant one of the men
who started dragging the deceased out of the bedroom;
was the Appellant the man who
uttered the final intention to kill the deceased?
Fact is, the Court
a
quo
was left in the dark
in this regard.
I am careful not to adopt an over
pedantic approach in this regard and to be influenced by any
fanciful reservations and fears,
but by any analysis, I entertain no
doubt whatsoever, that a reliable eyewitness would have been able to
spontaneously proffer,
at least some detail in this regard. Fact is;
there are none.
Moreover, in accordance with the
authorities referred to herein above, evidence of identification and
more specifically that of
the single witness had to be tested and
this the State failed to do. The defence did so, with a distinct and
understandable measure
of caution, not to venture where it need not
go.
My uneasiness does not end with the
fact that Petlele was unable to inform the Court
a
quo
as to what the
Appellant’s role was.
Petlele testified that he had
noticed two of the five men earlier in the day in a 20/20 Golf
together with Thulisile who
“…
when it drove past she hid herself inside the car and I thought she
was hiding herself from the child.”
63
As was the case with the Appellant,
the Court
a quo
was not told, in the slightest, what the roles of these two men were
during the incident. The two men that he noticed in the
20/20 Golf,
were part of the five that took the deceased away.
64
Petlele could, as a matter of fact,
decidedly recall that Appellant was not one of the two men that he
observed inside the 20/20
Golf.
65
On the whole, I find this total
lack of detail paradoxical. I emphasize that I am not critical of
the degree of some lack of detail,
but the total absence thereof.
Petlele, on his version knew or had at least seen three of the five
men at some stage before the
incident and yet he makes no effort to
highlight these men’s involvement in any manner.
I am not at all suggesting that
Petlele ought to have relayed the events which took place during the
incident, with the lucid
precision expected of a trained story
teller, but as a matter of simple logic, sound reason and good
judgment, I would have expected
of an eyewitness in a situation such
as this, to be able to at least, recall to some extent what role the
Appellant and the other
two men he had witnessed earlier on in the
20/20, played during the incident.
Moreover, Petlele made a statement
to the Police the day after the incident
66
and did not inform the Police of the fact that he “knew”
one of the five men, in that he had seen him at a braai,
on an
earlier occasion.
This, in addition to what I have
described herein above, causes me even more concern.
The State argued that Petlele
offered a perfectly plausible explanation during cross-examination
in this respect, when he responded
as follows:
“
At the time when I made
the statement, I was asked about things that happened on that day. I
was not asked if I had seen any of
these people before or what. That
was not put to me.”
67
I am mindful of the fact that
Petlele was only fourteen years old at the time when he made the
statement to the police, but to
my mind, Petlele was sufficiently
mature to understand the extreme significance of the fact that he
“knew” one of
the five men, having seen him before at
the braai.
After all, merely a year later,
when he was only fifteen, the sheer significance of it all then
suddenly dawned upon him sufficiently
to prompt him to tell the
police of this fact, after the identification parade.
Moreover, it appears to me that
Petlele did mention to the police that he had seen the two men in
the 20/20 Golf earlier that
day, when he made his first statement to
the police.
That this is undoubtedly so,
appears from the following question by counsel representing the
State during the trial in the Court
a
quo
:
“
When did you return to the
house?
Yes, I went there the following
day when I went to make a statement to the police.
Now to the police. Is there any
information that you forwarded to them that you have not testified
about today?
Yes there is.”
68
Petlele then proceeded to testify
about the fact that he noticed the two men in the 20/20 Golf earlier
on that day.
Petlele therefore did tell the
police of the two men, he saw in the 20/20 Golf, when he made his
statement the day after the incident.
He clearly understood the
importance of doing so and it is thus extremely significant that he
failed to mention the fact that
he knew the Appellant from having
seen him at a braai on an earlier occasion.
Petlele’s explanation during
cross-examination, when he was questioned as to why he did not
mention this to the police,
the day after the incident, is thus very
questionable.
The following was put to Petlele
during cross-examination:
“
I have gone through your
statement, sir, and in the statement there is nowhere where you
mention that one of these people that came
and took the deceased
away, were at the deceased’s house at the braai.”
69
To this Petlele responded as
follows:
“
At the time when I made
the statement, I was asked about things that happened on that day.
I
was not asked if I had seen any of these people before or what
.
That was not put to me.”
(the emphasis is added)
70
However, on Petlele’s
version, without being prompted or specifically asked in this
respect, he did tell the police that
he had seen two of the five men
earlier on the day in question, in a 20/20 Golf together with
Thulisile.
It is therefore of much moment that
Petlele failed to make any mention of the fact that he knew the
Appellant, the day after the
incident to the police. I find this
incongruous and unacceptable.
The chances are in any event remote
that Petlele was not asked if he know any of the attackers. That
this is so, is evident from
the fact that he did mention the two men
he witnessed earlier on in the day in the 20/20 Golf,
notwithstanding the fact that
he, according to him, was not asked
any questions if he had seen any of these people before.
If my conclusions in this respect
are justified, then it follows that yet another cloud of suspicion
hangs over Petlele’s
evidence.
Significantly Petlele identified
the Appellant at an identification parade held on the 14
th
of July 2006, nearly one year and two months after the incident.
Moreover, after identifying the
Appellant at the identification parade, Petlele was quick to then
tell the Police that he had
the occasion to witness the Appellant at
a braai held at the deceased’s house whilst the deceased was
not present, some
time before the incident.
Petlele did not mention this
significant fact to the South African Police one year and two months
earlier, and more specifically
a few hours after the incident.
At the end of Petlele’s
evidence, after he had testified that he had identified the
Appellant at the identification parade,
he is simply asked the
following question:
“
And that person,
(referring to the
Appellant),
where did you
see him before?”
Then Petlele responded as follows:
“
I saw him at the time when
they came to the braai. I saw him again at the time when they came
to take my uncle away.”
71
In my view, a reliable witness,
(and I am not suggesting that Petlele was dishonest), would have
spontaneously and unprompted
told the Court
a
quo,
to some extent at
least, what the role of the Appellant was during the incident.
A reliable witness in the shoes of
Petlele would also have been more specific as to what the roles of
the two men were, which
he had noticed earlier in the day in the
20/20 Golf together with Thulisile.
It does not assist the State to
argue that he was not asked any questions relating to the role of
the Appellant and/or any of
the other four men, when he made his
statement to the Police the day after the incident. In fact, it
makes it worse. It is a
fact, that even if he was not asked
questions about whether he had seen any of the men before, (which I
very much doubt), Petelele,
off his own bat, saw fit to tell the
police about the two men he saw earlier in the 20/20 Golf.
Not informing the Police of the
fact that he had the occasion to witness the Appellant at a braai
some time earlier on, in the
same breath as spontaneously telling
the Police of the two men had seen earlier on in the day of the
incident, causes me much
doubt.
Irrespective of the fact that I
have no hesitation in stating that an eyewitness under these
circumstances would have spontaneously
volunteered some evidence of
the role the Appellant played in this regard at least, it was up to
the State to ask these questions,
as identification had to be proved
and tested.
The defence cannot be criticised
for not asking these questions. Asking open-ended questions,
especially in a criminal matter,
where the answer is unknown to the
questioner, is bad advocacy.
At the end of the day, the State
failed to establish what the role of the Appellant was during the
incident and in my view, a
cloud of suspicion hangs over the
identification by the single witness, Petlele.
Although there is no evidence
surrounding the making of a statement directly after the
identification parade, what is clear is
that Petlele, after
attending the identification parade and after identifying the
Appellant, made a second statement to the police
in which he then
saw fit to mention that he had seen the Appellant on a prior
occasion, i.e. at the braai.
Regrettably, Petlele was not
questioned as to what jolted his memory on the day of the
identification parade, i.e. some one year
and two months after the
incident, to recall that he actually had met the Appellant before at
the braai. It would undoubtedly
have assisted if this aspect was
tested.
It warrants specific mention that
there seemed to have been general consensus during the debate which
took place in the appeal
hearing that a finding was justified that
the way the State’s case was presented in the Court
a
quo
left much to be
desired, especially as far as Petlele’s evidence is concerned.
As a matter of fact, Mr Sellem, who
appeared on behalf of the State and who incidentally did not
represent the State during the
trial in the Court
a
quo
, conceded correctly
in my view, that the evidence by Petlele was not satisfactory in
every material respect by reason of the
fact, specifically that he
was not questioned as to what role the Appellant played during the
incident.
It is so that it appeared that the
identification parade was properly held, save for some dispute as to
whether the investigating
officer was present. I see no reason to
interfere with the Court
a quo
’s finding
that it was not proved that the investigating officer was indeed
present during the identification parade and
that for all practical
purposes the identification parade was properly held.
At this identification parade it
did not take Petlele long to identify the Appellant.
The probative value of this
identification must be adjudicated against the backdrop of what I
have mentioned hereinabove and this
identification, one year and two
months later, should not be viewed in isolation.
72
What I find most troublesome is the
fact that less than a day after the incident, Petlele did not
mention to the police that he
knew one of the five men, i.e. the
Appellant and that he had met him some time before at a braai.
Face to face with the Appellant,
approximately a year and one month after the incident, Petlele
wastes no time in identifying
the Appellant as being one of the five
men and all of a sudden had this lucid recall, spontaneously or
prompted, (that much we
do not know), and told the Police that he
had met the Appellant before the incident, at a braai at the
deceased’s house.
A very strong possibility exists
that the fact that Petlele, (fifteen years at the time), in
identifying the Appellant at the
identification parade, some one
year and two months after the incident in question, may well have
been influenced and triggered
by the fact that Petlele viewed the
Appellant as one of Thulisile’s “people”, and
assumed, that he must have
been part of the five men.
The following quotation from the
evidence of Petlele during cross-examination is significant in this
respect and justifies the
view I take herein:-
“
You remember when you
started testifying and when you were telling this court about what
happened before these people entered the
deceased’s house. You
mentioned that Thuli opened the door. You do not know whether she
was opening for these people ---
That is what I said, yes.
What did you mean by that? ---
Yes, the reason I say so is because I saw him (
this
is a reference to the Appellant
)
at first at the braai. I saw him again when they came to take the
deceased, Tshepang away,
hence
I say it was her people
.”
73
(The emphasis is added)
Even if I could be justifiably
criticised for adopting an over cautious approach herein, I am left
with doubt.
From the photographs of the men who
attended the identity parade, it appears that the Appellant, who
held the number 9 in front
of his chest at the time, sported a
moustache.
74
It is raised as a ground of appeal
that Petlele never testified as to any identifying features and this
is in fact so. During
his evidence, the Appellant criticised Petlele
for not noticing that his ears were pierced. The Appellant
criticised Petlele
for not noticing the fact that his ears had been
“
open/torn
”.
75
It is so that the Court
a
quo
responded to this
that it too, failed to notice this fact.
Petlele was questioned during cross
examination about what it was that was peculiar about the Appellant
that made him remember
him and his response was:
“
Well, I do not know how to
explain this to you, that is why I am saying, I saw him.”
76
If indeed the Appellant wore a
moustache either at the braai or the incident as he did at the
identification parade, this is an
aspect which ought to have been
addressed by counsel appearing on behalf of the State in the Court
a
quo
.
It is unclear as to whether the
Appellant had a moustache during the trial but such a distinguishing
feature, in my view, ought
to have been the subject of investigation
in the Court
a quo
.
A further, and very material
problem, as far as the State’s case and the evidence of the
single witness, Petlele is concerned
in this matter, lies in the
fact that there was another eyewitness, Thulisile who could have
been called to corroborate Petlele’s
evidence.
Thulisile appears as the second
witness on the State’s list of witnesses
77
and her details are recorded as follows:
“
Thulisile Motaung, 27
Deraham Street, Malburton.”
It is common cause that the State
did not call Thulisile to testify, that the State had taken a
statement from her, that the defence
had a copy thereof and that
both parties elected not to call her as a witness.
In the matter of R v Bezuidenhout
78
the then Appellate Division dealt with an appeal against a
conviction and sentence by appellant on a charge which alleged that
the appellant had sold synthetic gems as diamonds.
One of the issues on appeal was
whether the Magistrate was correct in drawing a negative inference
against the appellant for failing
to call a witness which the Crown
failed to call and from whom a statement have been taken.
The full bench of the Appellant
Division was divided as to the result, Van der Heever JA and
Centlivres CJ dissenting from the
judgment of the majority,
Schreiner JA, Greenberg JA and Hoexster JA, who upheld the appeal
and set aside the conviction and
sentence.
Schreiner JA, incisively with
respect, had the following to say in respect of the Magistrate’s
making a negative inference
as a result of the failure by the
defence to call an available state witness, who was not called by
the Crown:
“
Although the Magistrate
mentions it as being merely one factor, it seems to me clear that he
found in favour of the Frazers’
version of what happened on the
21
st
January
because he inferred that the appellant did not call Petersen for the
reason that Petersen would not have supported his case,
but would
have supported the case for the crown. I can only suppose that the
Magistrate lost sight of the evidence that the police
had obtained a
statement from Petersen. Otherwise I cannot understand his treating
the fact that Petersen was not called as operating
against the
appellant, and indeed, as the very touchstone of credibility as
between the Frazers and the appellant.
Even
in civil cases it has been said to be obvious that where either party
could call the witness in question, failure to call him
operates
rather against the party on whom the onus rests than against the
other party
(Gleneagles Farm Dairy v Schoombee
1949 (1) SA 830
at 840 (A.D.)).
And clearly this
reasoning must apply with considerably greater force in a criminal
case where a crucial inference is sought to
be drawn against the
accused.
”
79
(The emphasis is added.)
The dissenting minority Judgments
did not disagree with this dictum by Schreiner JA and this approach,
with respect, must (still)
be a correct statement of the legal
position in this regard.
This approach was followed in S v
Teixeira
80
.
Although I do not read in the Judgment by Wessels JA, any specific
reference to R v Bezuidenhout, I note that it was referred
to during
argument as is clear from the summary of the submissions on behalf
of the Appellant.
81
Wessels JA stated the following:-
“
In the judgment of the
court a quo there is no reference whatsoever to the State’s
failure to call either Sithole or Tshabalala
to testify on behalf of
the State, nor to the question whether any inference adverse to the
State was justified.
Counsel
for the State must have realised how unsafe it is to rely on the
evidence of a single witness.
I will disregard the fact that he failed to call Mr Sithole. In the
case of Tshabalala, however, Counsel for the State must surely
have
realised that, if Sarah’s version is to be accepted as
truthful, Tshabalala’s evidence could have corroborated
her
evidence in regard to a matter very much in issue – namely the
number of incidents. It was clear from Sarah’s
cross
examination that appellant intended disputing her evidence as to the
number of incidents.
It was submitted by Counsel on
behalf of the State that an inference adverse to the applicant would
equally be drawn from the fact
that Tshabalala was not called to
testify on behalf of the defence. In this regard, Counsel for the
State contended on appeal
before this Court that during the trial,
Counsel for the appellant indicated that Tshabalala might be called
to testify on behalf
of the defence and had been furnished with
Tshabalala’s statement made to the police. This was an ex
parte statement made
by Counsel acting for the State on appeal. I
propose to ignore it, because Counsel who acted for the appellant at
the time did
not appear before this court and no reference is made
thereto in the record of the proceedings.
In my opinion, the failure by the State to call Tshabalala to testify
as a witness, justifies the inference that in Counsel’s
opinion
his evidence might possibly give rise to contradictions which could
have reflected adversely on Sarah’s credibility
and reliability
as a witness.
In my opinion, therefore, the
court a quo erred in concluding that the evidence of a single
witness, Sarah, were satisfactory in
every material respect, and that
it was safe to convict appellant of murder on the strength of her
uncorroborated evidence, notwithstanding
the improbability inherent
in her version.”
82
(The emphasis is added.)
It is so that the decisions of R v
Bezuidenhout and S v Teixeira were decided long before the enactment
of our current Constitution.
83
It is by now trite that accused
persons have the right to obtain copies of documents and statements
in the state’s docket.
84
Irrespective of the constitutional
right to the contents of the State’s docket, it is common
cause in the matter before
us, that the Appellant’s counsel
was placed in possession of the statement by Thulisile. It is common
cause further that
the Appellant’s counsel decided not to call
Thulisile as a witness for whatever reason.
The enactment of our Constitution,
does not in my view impact at all on the legal position as set out
by Schreiner JA and Wessels
JA.
The onus in criminal matters has
not shifted since the enactment of our Constitution and irrespective
of an accused’s entitlement
to the contents of the docket, a
failure by an accused to call a State witness who was not called by
the State, after being in
possession of the statement by that
witness who was not called, does not change the legal position.
A failure to call a particular
witness in a matter, where either party could call the witness,
operates against the party on whom
the onus rests and in criminal
matters that party is the State.
85
This is the legal position in this regard, as pronounced upon by
Schreiner JA. I propose to follow it, not only because I am
bound
to, but because I respectfully agree with it.
Where a State witness is available,
the police having taken a statement from such a witness and it is
obvious that that witness
can either corroborate or contradict the
evidence of a single witness, then the failure to call such a
witness must give rise
to a negative inference against the State’s
case.
Moreover, a reading of Petlele’s
evidence makes it very clear that he suspected Thulisile to be part
of the conspiracy to
kidnap (and murder) the deceased:
Petlele testified that Thulisile
opened the kitchen door, where after the initial three men entered
the house.
Petlele testified that Thulisile
entered the bedroom with her child in the presence of the fourth
man who had entered the house.
Thulisile was not harmed or tied
up or assaulted or subjected to any form of abuse.
Moreover, Petlele testified that
he had noticed Thulisile in a 20/20 Golf earlier on the day of the
incident in the presence
of two of the men involved in the
incident.
86
To my thinking, there exists every
reason to suspect Thulisile’s possible involvement in the
crime. This notwithstanding,
the Court
a
quo
was not informed as
to why Thulisile had not been charged and for whatever reason she
was not called as a witness.
I find that the State was compelled
to do one of two things, to wit:-
charge Thulisile with the same
charges as the Appellant and accused no 2; or
call her as witness in the trial
against the Appellant and accused no 2.
The State’s failure to do
either, must count in the Appellant’s favour, as there is thus
every indication that Thulisile
would not have corroborated
Petlele’s evidence. If the State charged Thulisile as well, no
negative inference could have
been made, as I do herein, for the
failure to call her as a witness.
I am quick to add that it is not
necessary, in order to justify a negative inference from the failure
to call a State witness
who could potentially corroborate the
evidence of a single witness, to make a finding that it is evident
from the evidence that
he/she would not have corroborated the
evidence. A negative inference is warranted, and indeed called for,
on the strength of
the approach adopted by Schreiner JA and Wessels
JA.
I find that a negative inference
ought to be drawn from the fact that the State failed to call
Thulisile as a witness, who was
clearly an eyewitness to everything
that Petlele testified about.
I also find that no negative
inference can be made from the fact that the defence failed to call
Thulisile as a witness.
On the whole therefore, on the
topic of the evidence of the single witness herein, I find that:-
Petlele’s evidence, being a
single witness, was not satisfactory in all material respects;
87
a negative inference must be drawn
from the fact that the State failed to call Thulisile, no 2 on the
State list of witnesses,
to testify;
the failure to call Thulisile was
a considered one, based upon the obvious realization that she was
not going to corroborate
Petele’s version at all.
Possible corroboration of the
evidence by the single witness
Dissatisfied with the
identification evidence of the single witness, I now turn to
investigate whether there was sufficient corroboration
in order to
accept the evidence by the single witness, Petlele.
The first is the identification of
the Appellant by the single witness at the identification parade. I
dealt with this hereinabove,
in my discussion of the evidence of
Petlele and I need say only this at this juncture.
Petele did not tell the police a
few hours after the incident, that he had seen one of the men at a
braai some time before, importantly,
at the deceased’s house
when the deceased was not present but Thulisile was. Yet he tells
the police, unprompted on his
version, about the fact that he had
seen two of the five men earlier on in the day in question in the
20:20 Golf..
Face to face with the Appellant, a
year and one month later, he wastes no time in identifying the
Appellant and telling the police
that he had in fact seen him at the
braai, before the incident.
This leads to one reasonably
possible inference at the very least: Petlele immediately associated
the Appellant with Thulisile’s“people”,
remembering the Appellant form the braai and concluded that he must
have been part of the five men, who are Thulisile’s
“people”.
I am thus still ill-at-ease, even
if I take into account this identification.
The next possible corroboration
lies in the fact that the manner in which the deceased is depicted
in the photographs, clearly
show that his hands and feet were bound
with (hanger) wire.
This does corroborate the evidence
by Petlele, in that he testified that he saw the deceased in his
bedroom with his hands and
feet bound with hanger wire. It goes no
further than just that.
As I have indicated herein above, I
do not take into account any of the hearsay evidence which was ruled
inadmissible by the Court
a quo
, save to take into
account that what happened as a result of the hearsay evidence.
This is restricted to the evidence
by Jones, who found the firearm at the place where the Appellant and
others, including he brother,
lived. This firearm was ballistically
tested and connected to the firearm used to kill the deceased.
88
According to Jones’s
evidence, it was accused no 2 who tried to hide the firearm, when he
knocked on the door of the dwelling.
After entering, he found the
firearm where he had witnessed accused no 2 trying to hide it.
Accused no 2 was arrested, charged
and found guilty on the two
charges relating to unlawful possession of an unlicensed firearm and
ammunition. He was not identified
as one of the five assailants by
Petlele.
This in my view constitutes the
high water mark in respect of possible corroboration, i.e. the fact
that the firearm used in the
crime was found at the place where the
Appellant (and others) lived. There exists a plethora of
possibilities as to the reason
for the firearm being at the
Appellant’s place of residence, one of which accused no 2 was
found guilty of. Speculation
is not called for.
There is nothing to show any
connection between the Appellant and the firearm, save for the fact
that it was found where he, (and
others), lived; but on the State’s
evidence, it was accused no 2 who tried to hide it, and who was
correctly found guilty
of unlawful possession. The Appellant was not
present when it was found and his denial of any knowledge thereof
cannot be said
to be false, beyond reasonable doubt.
Conclusion and final analysis
If I step back a pace, after my
critical analysis herein above of the individual compartments of the
evidence in this case, as
I am required to do, and I consider the
mosaic as a whole, I cannot make the finding that the Appellant is
guilty of murder,
when the only possible links are the
identification at the identity parade and the circumstantial
evidence of the existence of
the firearm, at the place where he
resided with others.
It may be, and on this I do not
make any finding, that the disallowed hearsay evidence may have, if
allowed, finally tilted the
scales in favour of what can be
described as sufficient corroboration, but without it, I find that
there is nothing sufficiently
compelling, which corroborates the
unsatisfactory identification evidence of the single witness
Petlele, to the extent that it
can be said to be true beyond
reasonable doubt.
In so far as I may have attached
too little weight to the scant corroboration that there is, the
negative inference I make, against
the State for failing to call an
available eye witness who could have corroborated the evidence of
the single witness, finally
causes me to conclude that the State did
not prove beyond reasonable doubt that the Appellant was involved in
the crimes in question.
I have no doubt that the failure
for calling Thulisile as a witness was a considered one, based on
the firm belief and conviction
by counsel of behalf of the State at
the time that she would not have corroborated Petlele’s
version. The State must bear
the consequences of this; after all, it
could have charged her for the same crimes; that much is clear and
which would have eliminated
any possible negative inference.
Finally, I cannot conclude that the
Appellant’s denial of any involvement in the crimes is false
beyond any reasonable doubt.
In the premises I would make the
following order:
The appeal is upheld.
The Appellant’s convictions
and sentences are hereby set aside.
____________________
LP HALGRYN
Acting Judge of the High Court of
South Africa
Counsel for the Appellant: Adv
S.B.
Masondo
instructed by
Legal Aid
Counsel for the State: Adv
T
Sellem
Date of hearing: 15
th
March, 2010
Date of judgment: 28
th
April, 2010
1
1967 (4) SA 203
(N) at 206H
2
1999 (2) SA 79
(W);
1999 (1) SACR
447
(W)
3
2001 (2) SACR 97
(HHA) at 101a-f
4
1959 (3) SA 337
(A) at 340H-341B
5
1965 (4) SA 439
(A) at 442F
6
[1991] ZASCA 70
;
1991
(4) SA 310
(A) at 327H-I
7
1920 AD 486
8
At 490
9
At 491
10
1980 (1) SA 60
(A) at 63 C-E
11
1982 (3) SA 1019
(A) at 1033E
12
At 63B
13
At 63E
14
At 1031C- 1032A
15
1988 (1) SA 868
(A)
16
See, at 899B-G
17
See
S v Sefatsa
(
supra);
S v Mgedezi and
Others
1989 (1) SA 687
(A);
S
v Motaung
and Others
[1990] ZASCA 75
;
1990 (4) SA 485
(A);
S v Khumalo en Andere
[1991] ZASCA 70
;
1991 (4) SA 310
(A) and
S v Si
ngo
[1992] ZASCA 219
;
1993 (2) SA 765
(A) at
772D.
18
1980 (3) SA 755
at 764A
19
1996 (1) SA 725 (CC)
20
During
the long and repeated deliberations I had with my learned, and much
more senior Brothers Willis J and Moshidi J herein,
prior and
subsequent to the actual appeal hearing, it transpired that we did
not share the same views and unfortunately, I found
myself in the
difficult position, as a young first time acting Judge, of holding
the minority view. I was requested by the most
Senior Judge, my
Brother Willis J, to write the Judgment in this matter even before
our respective differences became apparent.
I was again requested to
write my Judgment by my Brother Willis J, after our respective
differences became crystallized and I
set about doing so, with as
much care and circumspection as I could muster, well aware of the
fact that this will be the minority
Judgment. I do regret that I
found myself unable to agree with my learned Brothers on the outcome
herein. I do wish to extend
to them my sincere appreciation for the
kind manner in which they dealt with my disagreements, patiently
debating the many issues
with me at length and more specifically for
my Bother Willis J ultimately encouraging me to stand my ground and
reminding me
that after all, that is why our Law allows for appeals.
My respect for them is ongoing.
21
If I am
wrong about the question of identification, interesting questions of
Law arises involving the association with a common
purpose and
involvement as an accomplice. By reason of the view I adopt herein,
I need not deal therewith.
22
This
count was amended during the trial to bring it in line with the
evidence.
23
The
Criminal Procedure Act.
24
She was
referred to by this name and as “Thuli” during the
trial. Her real name is Thulisile Motaung. She was no 2
on the
State’s list of witnesses, but not called as witness, although
she was an eyewitness to the crimes, according to
Petlele. This is
not in dispute. I refer to her herein further as “Thulisile”.
25
Although
Petlele could not testify to this, as he did not witness this.
26
I do not
quite understand this. It appears as if he states that she was
trying not be noticed.
27
Herein
after “accused no 2”.
28
A copy of
Mhlope’s statement appears at p267-269.
29
At page
77 of the transcript.
30
At p 206.
31
This, admittedly, is not easy and one has to consciously guard
against allowing any niggling feeling of suspicion to take hold.
32
The Court
a
quo,
incorrectly
found that this was on the 12
th
of may 2003, at p204, line 22.
33
It would
have been quite incredible for him to remember where he was on a
date so far in the past.
34
THE LAW
OF EVIDENCE;
C W H
Schmidt and H Rademeyer, Issue 5, August 2007, Lexis Nexis, Durban,
at p4-25. See also Thebus v S 2002 3 All SA 781 (SCA) 795.
35
See S v
Zuma and Others 1995 (2) 642 (CC).
36
See S v
Mhlongo
1991 2 SACR 207
(A) 210d.
37
See Osman
and Another v Attorney-General, Transvaal
1998 (4) SA 1224
(CC), at
1229 G-H.
38
See
PRINCIPLES OF EVIDENCE, 2
nd
Edition, Schwikkard Van Der Merwe, Juta, 2002, at p517.
39
See S v
Charzen and Another
2006 (2) SACR 143
(SCA) at 148. See also S v
Ngicina
2007 (1) SACR 19
(SCA ); at para [16], p24.
40
See Sv
Shekelele
1953 (1) SA 636
(T) at 638F-G, per Dowling J.
41
See R v T
1958 (2) SA 676
(A).
42
See
PRINCIPLES OF EVIDENCE, supra, at 515.
43
1972 (3)
SA 766
(A) at 768.
44
S v
Mehlape
1963 (2) SA 29
(A). See also THE SOUTH AFRICAN LAW OF
EVIDENCE, Zeffert, Paizes, Skeen, Lexis Nexis, Butterworths, Durban,
at p142-146.
45
THE LAW OF EVIDENCE; supra, at 4-8 to 4-10. See also THE SOUTH
AFRICAN LAW OF EVIDENCE, supra at p799-801. See also PRINCIPLES
OF
EVIDENCE, supra, at p390.
46
So
strongly was it felt that a single witness’s evidence was
unreliable, that a conviction based thereupon only, could not
follow.
47
THE LAW
OF EVIDENCE,
supra,
at 4-9.
48
State v
Ganie
1967 (4) SA 203
(N) 206 H. See also: S v Letsedi
1963 (2) SA
471
(A) 473 F, S v R
1977 (1) SA 9
(T), S v Hlonga
1991 (1) SACR 583
(A), S v Jones
2004 SACR 420
(C) 427, Stephens v S
[2005] 1 ALL SA 1
(SCA) para 17.
49
See THE
LAW OF EVIDENCE, supra, at 4-6 to 4-7. The quote is from Sv Avon
Bottle Store (Pty) Ltd
1963 (2) Sa 389
(A) at 393-394, per Botha JA.
50
1999 (2)
SA 79
(WLD).
51
S v Van
der Meyden
supra
at
82A – B
52
S v Van
der Meyden
supra
at
80G – J and 81A – B
53
In S v
Hadebe and Others
1998 (1) SACR 422
(SCA), at p426 e-h.
54
The
emphasis herein further is added.
55
Tshepang
is the deceased. This evidence appears at p15 of the record.
56
At p15.
57
At p16.
58
At p16.
59
At p17.
60
At p17.
61
At p18.
62
At p18
and 19.
63
At p22.
This is indeed, but one of many red lights which light up, causing
one to suspect Thulisile of being involved in the crime.
This is
significant, as she was not charged and not called as a witness.
This has consequences, as I will point out herein below.
64
At p23.
65
At p25.
66
Accepting
that the incident took place between 19h00 and 20h00, then the
statement to the Police would have been made a few hours
after the
incident.
67
At p27.
68
At p21.
69
At p27.
70
At p27.
71
At p24.
This was the high water mark of the evidence of identification of
the Appellant, the identity parade aside.
72
As per the approach by Nugent J.
73
At p30.
74
The
photographs of the identity parade was marked Exhibit G1. The
photographs of the appellant appear at photos 2, 3, 5 and
6 of
Exhibit G1. Exhibit G1 appears at pages 277 up and until 282.
75
At p142
to 53.
76
At p32.
77
At p6.
78
1954 (3)
SA 188
(AD).
79
Rv
Bezuidenhout,
supra
at p196 F to H and p197 A.
80
1980 (3)
SA 755
[AD].
81
At p756 G
– H.
82
State v
Teixeira,
supra
at
p763 F – H and 764 A – C.
83
Act 108
of 1996.
84
See
inter
alia
Tshabalala and others v The Attorney-General of Transvaal and
another
[1995] ZACC 12
;
1996 (1) SA 725
(CC) at 742 D – 743 B
85
R v
Bezuidenhout, supra, at p196 H.
86
These are but a few a examples.
87
This was conceded by the State, during argument.
88
See the
ballistics report at p263 and the lists of admissions at p239 and
241.