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[2014] ZASCA 153
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Jantjies v S (871/13) [2014] ZASCA 153 (29 September 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case no: 871/13
In
the matter between:
SIYABONGA
JANTJIES
..................................................................................................
APPELLANT
and
THE
STATE
.....................................................................................
RESPONDENT
Neutral
citation:
Jantjies v S
(871/13)
[2014] ZASCA 153
(29 September 2014)
Coram:
Shongwe, Majiedt and Mbha JJA
Heard:
10 September 2014
Delivered:
29 September 2014
Summary:
Criminal law – whether on the
proved facts the deceased committed suicide or whether she was
killed by an intruder or by
the appellant –circumstantial
evidence sufficient to found a conviction on murder – proved
facts sufficient to infer
that the appellant killed the deceased.
ORDER
On
appeal from:
Eastern Cape High
Court, Grahamstown (Lowe J and Alkema J, sitting as court of appeal):
The appeal is
dismissed.
JUDGMENT
Shongwe
JA (Majiedt and Mbha JJA concurred)
[1]
This appeal is against a conviction on a charge of murder (dolus
eventualis) by the Regional Court Middelburg (Eastern Cape).
The
appellant, Mr Siyabonga Jantjies, was sentenced to 10 years’
imprisonment. Leave to appeal against the conviction was
granted to
the High Court (Eastern Cape, Grahamstown), which appeal was
dismissed and the application for leave to appeal to this
court
suffered the same fate. This appeal is with leave of this court.
[2]
The issues in dispute will be best understood in the context of the
following facts, which are mostly common cause or beyond
dispute.
Regarding the incident itself, the facts emanate from the appellant’s
plea explanation and his testimony, since
there were no other
eyewitnesses. The deceased was the appellant’s girlfriend.
During the afternoon of 17 September 2008
they were together at the
deceased’s place of residence. The appellant received a phone
call from an ex-girlfriend which
phone call upset the deceased. A
heated argument ensued. The deceased grabbed a big knife and tried to
stab the appellant who managed
to grab her and they both wrestled for
possession of the knife. The appellant succeeded in dispossessing her
of the knife and he
threw the knife on the bedside. The appellant
left the room to calm down. According to him, as he was leaving the
deceased
told him that she was going to kill herself, because he was
now going to his ex-girlfriend.
[3]
The appellant’s version is that, upon his return to the
deceased’s room approximately half an hour later, he found
the
lights off. The deceased was lying under a blanket on the bed. He
took off his clothes and slept next to the deceased. He
alleges
that he was not aware at that time that the deceased was injured. In
the morning he tried to awake the deceased, because
she had to go to
school but she did not respond. He tried several times
unsuccessfully. He noticed that she was injured and bleeding.
According to the appellant he decided to go to his cousin whom he
informed of what had happened the night before, though his cousin
denies having been told the details. His cousin phoned the
appellant’s father who turned up without delay. The appellant
says that he told his father the whole story of what had happened.
His father also denied that he was told the whole story, more
particularly that the deceased was bleeding and appeared to have been
injured. The three of them decided to go to the police station
to
report that the deceased would not wake up.
[4]
At the police station, they made a report and two police officers
were then assigned to accompany them to the deceased’s
place of
residence. They found the deceased lying on her stomach on the bed
under a blanket in a pool of blood. An ambulance was
summoned and the
deceased was certified dead right there. The details of what happened
further will be unravelled as the story
unfolds.
[5]
The State led the evidence of Mthobeli Fuzani, the appellant’s
cousin who confirmed that the appellant arrived at his
place and
reported that his girlfriend, the deceased, would not wake up when he
tried to awaken her. He further testified that
the appellant did not
tell him why the deceased would not wake up. The prosecutor brought
to his attention that he was deviating
from his statement he made to
the police, for instance that in his statement he had said that the
appellant said to him that he
(appellant) had done ‘kak’.
The witness denied having said that and said that was not his
statement and also denied
having signed the statement. The prosecutor
did not impeach the witness, but simply left it at that. The defence
did not cross
examine this witness.
[6]
The next witness was the appellant’s father (Mr Jantjies
Senior) who confirmed that he was called and upon arrival, he
found
the appellant crying and was told that the appellant’s
girlfriend, the deceased, would not wake up. The appellant did
not
know why she would not wake up and he then suggested they all go to
the police station. Mr Jantjies was asked several times
what the
appellant said was the reason for her not waking up – he
replied persistently that the appellant never disclosed
the reason.
The prosecutor brought to his attention that in his statement to the
police he said that the appellant said he had
killed his girlfriend,
the deceased. He denied having said that, although he admitted making
a statement and signed it, but denied
that it was read back to him.
[7]
The State led the evidence of Sergeant Sobandla (SAPS). She testified
that she and Constable Makehle received a murder complaint
while
patrolling and drove to the police station. At the police station
they found the appellant and his father and cousin. Commander
Ackerman (SAPS) told them that the appellant’s father told him
(Ackerman) that he had brought his son to the police station
because
his son had stabbed his girlfriend, the deceased. This evidence was
provisionally admitted as it was hearsay evidence,
until Ackerman
came to testify and confirm it. Ackerman was not called to
testify – hence this piece of evidence was
correctly
disregarded by the trial court. They all proceeded to the deceased’s
place of residence and found her lying on
her stomach under a blanket
on the bed. Upon questioning by Sobandla, the appellant is alleged to
have made certain admissions
which the trial court found to be
inadmissible, because Sobandla had not warned or informed the
appellant of his right to remain
silent prior to questioning him. The
knife was also found and she testified that she noticed stab wounds
on the front of the deceased’s
body. The appellant was then
arrested.
[8]
Dr de Beer testified by reading and explaining the contents of the
post mortem report because he did not compile the report.
Dr Schmidt,
who is now deceased, performed the post mortem examination and
compiled the report. Dr de Beer testified that the deceased
sustained
six stab wounds, three of them on the chest, (one penetrated the
heart), two on the neck and one on her back. He also
expressed an
opinion that it was improbable for the deceased to have stabbed
herself six times and specifically on her back. He
explained that the
three wounds penetrated the chest – therefore she could not
have had the power to do it three times. In
his opinion someone else
must have inflicted the stab wounds.
[9]
The appellant testified that he had recounted the details of the
incident to his cousin and to his father, as set out in paragraphs
2
and 3 above. There is a clear contradiction on this aspect, as the
cousin and the father said that the appellant did not disclose
the
details of what had happened. More will be said later in the judgment
regarding this aspect. He denied having told his father
that he had
done ‘kak’.
[10]
The trial court concluded that the appellant, his father and cousin
were mendacious witnesses. The appellant had told the court
that when
he spoke to his cousin and father he related the whole episode of
what had happened after he received a phone call from
his
ex-girlfriend. The appellant’s version was rejected by the
trial court.
[11]
On appeal before us the conviction was attacked on the grounds that
at the close of the State’s case there was no evidence
that the
appellant had committed the murder or had committed any offence,
which is a competent verdict on a charge of murder. He
argues further
that his application for a discharge in terms of
s 174
of the
Criminal Procedure Act 51 of 1977
was unjustifiably refused.
Therefore, so the argument went, the refusal to discharge him
amounted to a breach of his rights guaranteed
by the Constitution. It
was submitted that there was no possibility of a conviction other
than if the appellant entered the witness
box and incriminated
himself. The provisions of s 174 do not refer to a possibility of a
conviction but clearly state that ‘…
the court is of the
opinion that there is no evidence that the accused committed the
offence …’ In
S v Luxaba
2001 (2) SACR 703
(SCA) at para 9, the court observed that the
refusal to discharge an accused at the conclusion of the State’s
case entails
the exercise of a discretion and is not subject to
appeal. In my view s 35 (3) of the Constitution 108 of 1996 which
guarantees
to every person the right to a fair trial, has not removed
this discretion. Admittedly, the discretion must be exercised
judicially.
[12]
The high-water mark of the appellant’s counsel’s
submissions was in respect of the evidence of Dr De Beer. Counsel
argued that the post mortem report says nothing about the deceased’s
lungs collapsing – whereas Dr de Beer opined
that one of
the three stab wounds to the chest of the deceased would have caused
the collapse of the lung immediately. This comment
was elicited by a
question from the defence to the effect that it was possible for
someone to stab himself or herself six times.
Dr de Beer testified
that ‘all things are possible’ but that it was
improbable, because the injured person would have
lost a lot of blood
and would therefore be powerless.
[13]
The respondent contended that the trial court as well as the court a
quo was alive to the fact that it was not the appellant’s
case
that the deceased committed suicide; this much counsel for the
appellant conceded. The respondent further correctly contended
that
the matter must be decided on circumstantial evidence.
[14]
It is common cause that the crux of this matter is about drawing a
reasonable inference from the proved facts. (See
R v Blom
1939
AD 188
at 202 – 203) where Watermayer JA observed that:
‘
In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
(1)
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, the inference cannot be drawn.
(2)
The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn.
If they do
not exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.’
The
common cause and proved facts are – the appellant and the
deceased were lovers; on 17 September 2008, an argument ensued
between them; the deceased grabbed a knife and attacked the
appellant; a struggle over the knife followed. The appellant’s
evidence is that he overpowered her and threw the knife away and left
the room – he came back later and slept next to the
deceased
without waking her up or talking to her. In the morning he says he
tried to wake her up as she was to go to school, but
she would not
wake up. He noticed blood on her and decided to involve the elders.
[15]
A peculiar feature is that the appellant, after realizing that the
deceased was injured, did not seek medical assistance. There
is
evidence that one of the inhabitants of the house was a lady employed
by an ambulance service. The appellant did not even attempt
to invoke
the assistance of this lady or to call the police for help, instead
he went to his cousin who later telephoned the appellant’s
father.
[16]
It is common cause that on their way to the police station, the
appellant, his father and his cousin passed the deceased’s
house. The defence argued that the appellant was shocked and could
not think properly – therefore justifying his failure
to call
for medical assistance first. However, it gets more intriguing
because the cousin and his father also never thought of
first going
to where the deceased was first before reporting to the police,
though they were not as shocked as the appellant. The
reasonable
response to be expected from the appellant was to seek medical help
and, while waiting for such help, he could then
have called the
elders and the police – more especially since on his version
the deceased had threatened to kill herself
the previous night.
[17]
It is folly to think that circumstantial evidence means some sort of
weaker or less reliable evidence. (See DT Zeffertt, AP
Paizes & A
st Q Skeen:
The
South African Law of Evidence
at 94;
S v Mcasa & another
(delivered 15/9/2003 –
unreported, case no. 638/2002) para 8; and Hoffmann:
S
A Law of Evidence
(1
st
ed 1963) at 31). In the present case there is compelling
circumstantial evidence. Dr de Beer, an experienced medical
practitioner,
is an expert. We were urged by counsel for the
appellant not to accept Dr de Beer’s evidence at face value. Dr
de Beer confirmed
what is contained in the post mortem report and
that the stab wound to the heart was the cause of death. Most
scientific evidence
is circumstantial – for instance DNA and
fingerprints evidence, are all scientifically determined by experts.
I cannot, for
a second, ignore Dr De Beer’s evidence because it
is moreover logical. (See
S v Van der
Meyden
1999 (2) SA 79
(W) at 82D-E). In
this case circumstantial evidence is the only evidence linking the
appellant to the crime of murder, over and
above his explanation.
[18]
I associate myself with the conclusion of the trial court that the
appellant’s cousin and father are mendacious witnesses,
clearly
trying to protect the appellant. Appellant’s counsel conceded
that the contradiction between the appellant, his father
and cousin,
referred to above, is crucial. The appellant testified that he told
them the details of what had happened prior to
him calling them –
the cousin and the father denied that he did, all they said, was that
he said to them, that his girlfriend,
the deceased would not wake up.
One is driven to the conclusion that they were untruthful on
this aspect in order to protect
the appellant.
[19]
I am unable to find that the trial court as well as the court a quo
misdirected themselves in the analysis of the evidence.
Davis AJA in
R v Dhlumayo & another
1948 (2) SA 677
(A) at 705 observed
that:
‘
The
trial Judge has advantages – which the appellate court cannot
have – in seeing and hearing the witnesses and in
being steeped
in the atmosphere of the trial. Not only has he had the opportunity
of observing their demeanour, but also their
appearance and whole
personality. This should never be overlooked.’
The
possibility that the deceased stabbed herself six times to death is
excluded by the medical evidence and the location of the
wounds. The
further possibility that she could have been killed by an intruder
can also be excluded – no forced entry was
evident. Thus the
only reasonable inference to be drawn on the proved facts and
circumstances is that the appellant is the killer
and that he had the
requisite intent to kill the deceased. It was held in
R
v De Villiers
1944 AD 493
at 508 –
9 that a court should not consider each circumstance in isolation and
draw inferences from each single circumstance
but that taken as a
whole, the evidence is beyond reasonable doubt inconsistent with
innocence. (See Schwikkard PJ and Van der
Merwe SE:
Principles
of Evidence
at 505;
R
v Mthembu
1950 (1) SA 670
(A)).
[20]
For the reasons stated above the appeal must fail.
[21]
I propose the following order:
The appeal is
dismissed.
_____________________________
J
B Z SHONGWE
JUDGE
OF APPEAL
Appearances
For
the Appellant: J W Wessels
Instructed
by:
S.B
Maqungu Attorneys, Port Elizabeth;
Lovius
Block, Bloemfontein.
For
the Respondent: M September
Instructed
by:
The
Director of Public Prosecutions, Grahamstown;
The
Director of Public Prosecutions, Bloemfontein.