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[2013] ZASCA 124
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Matshiva v S (656/12) [2013] ZASCA 124; 2014 (1) SACR 29 (SCA); [2014] 2 All SA 141 (SCA) (23 September 2013)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 656/12
In the matter between:
Reportable
JEFFREY KHATHUTSHELO
MATSHIVHA
.......................................................
Appellant
and
THE STATE
....................................................................................................
Respondent
Neutral citation:
Matshivha v The State
(656/12)
[2013] ZASCA 124
(23 September
2013)
Coram:
Ponnan,
Maya, Shongwe and Tshiqi JJA and Zondi AJA
Heard:
30 August
2013
Delivered:
23
September 2013
Summary: Rape –
evidence – child witnesses, administration of the oath,
capacity of a child witness to understand the
nature and import of
the oath, finding of incapacity to be preceded by an enquiry –
child witness to be admonished to speak
the truth, effect of evidence
given without compliance with s 164 of the
Criminal Procedure Act 51
of 1977
.
Murder – single
witness – evidence subject to cautionary rule especially where
contradicted by other factual and medical
evidence.
______________________________________________________________________
ORDER
_____________________________________________________________________
On appeal
from
:
Limpopo High
Court, Thohoyandou (Hetisani J sitting as court of first instance):
The appeal succeeds and
the convictions and sentences for rape and murder are set aside.
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
Zondi AJA (Ponnan,
Maya, Shongwe and Tshiqi JJA concurring):
[1] The appellant, Mr
Jeffrey Khathutshelo Matshivha appeared in the Limpopo High Court,
Thohoyandou (Hetisani J) facing two charges:
one for murder and the
other for rape. In relation to the charge of rape the indictment
alleged that on the night of 5 January
2000, at the complainant’s
home in Magau Village, Tshilwavhusiku, the complainant, a then seven
year old girl was raped by
the appellant. In the alternative the
indictment alleged that the appellant in contravention of section
14(1)
(a)
of the Immorality Act 23 of 1957 had had sexual
intercourse with a minor under the age of 16 years. With regard to
the charge of
murder, it was alleged that on 22 July 2000, at
Madombidzha, the appellant murdered Mr Mukilasi Gideon Ramavhoya,
(the deceased),
by stabbing him with a knife.
[2] The appellant, who
pleaded not guilty to both counts, was found guilty as charged and
sentenced to life imprisonment in respect
of the charge of rape and
45 years’ imprisonment for the murder.
[3] It is common cause
that in relation to the rape, the State’s case rested
exclusively on the identification evidence of
the complainant and her
brother, who, at the time they testified were eight and 13 years old
respectively. When the appeal record
was perused it was not clear
whether the reception of the evidence of the complainant and her
brother complied with s 162 read
with s 164 of the Criminal Procedure
Act 51 of 1977 (the Act). Counsel were accordingly invited to file
supplementary heads of
argument on the propriety of the procedure the
court below followed in receiving the children’s evidence.
Counsel were also
informed that they would be required to address the
court on whether there was proper compliance with s 162 read with s
164 of
the Act.
[4] In his response
counsel for the State stated that the appeal record was incomplete in
certain respects. He alleged that upon
receipt of our query he
together with a stenographer and an interpreter listened to the audio
recording of the trial relating to
the administering of the oath in
respect of the complainant and her brother. He discovered that
certain questions which were put
to them by the presiding officer
were omitted from the transcribed record. An affidavit deposed to by
the interpreter who was involved
at the trial in which she sets out
what was not captured on the typed transcript, was filed. I shall
assume – without deciding
– in favour of the State that
we may have regard to the evidence contained in that affidavit in
determining whether there
has been proper compliance with the
provisions of s 162 read with s 164 of the Act.
[5] To protect the
identity of the complainant, I will employ the initials T M and G M
respectively whenever references are made
to her and her brother. In
respect of her the record reads:
‘
HETISANI
J: And what about, where is T M? Thank you, so the court commences
now with this proceeding in view of the fact that the
person who is
in the witness box is a minor child who by law when a minor child
testifies before a court of law the court must
be cleared of all the
people from the gallery except for one person who the court received
an application or request that, that
person would like to observe the
proceedings for academic procedures. So will the rest of the people
be cleared from the gallery
please.
MR
POODHUN: My lordship the witness is already in the witness box my
lordship. (indistinct)
T
M: d.s.s. (Through interpreter.)’
[6] In relation to the
complainant’s brother the following is recorded:
‘
Mr
Poodhun: Your lordship the state calls G M, my lordship the witness
is only 13 years old, his guardian is present and your lordship
the
proceedings will continue
in
camera
because
of the age. As your lordship pleases.
Hetisani
j: Thank you.
INTERPRETER:
I do not know my lordship whether I should swear him in.
HETISANI
J: What do we normally do?
MR
POODHUN: Your lordship you must ask him whether he knows the truth
between the truth and a lie and then you must ask him to speak
the
truth.
HETISANI
J: There you are.
INTERPRETER:
As the lordship pleases.
G
M: d.s.s. (Through interpreter.)’
[7] In respect of the
complainant, the State asserted that her evidence must be
supplemented by the following:
‘
Judge
Hetisani GNK: T M how old are you?
Do
you know your age - Yes?
How
many? - I am eight years old.
Do
you know the difference between the truth and the lie - Yes
When
a person lies is when a person is telling what? The truth or is when
the person is not telling the truth. When it said that,
that person
is telling a lie – That is one person would be telling lies.
You
speak lies? - No
What
do you speak? - The truth
Thank
you you may proceed.’
[8] The portion of the
missing evidence relating to the complainant’s brother is
alleged to be the following:
‘
Judge:
What are your names, boy?
Witness:
G M
Judge:
G who?
Witness:
M
Judge:
M, your Tshivenda name, don’t you have another name?
Witness:
Godi for short
Judge:
Yes we know, but don’t you have another name, Tshivenda name?
Witness:
No
Judge:
You’re just G M?
Witness:
Yes
Judge:
Where do you reside?
Witness:
At Ha – Magau
Judge:
Where at Ha – Magau
Witness:
(silence)
Judge:
What is the name of the place, there at Ha – Magau. Ha –
Magau it’s a big area. Which side is your homestead.
Witness:
It is on the side eish
Judge:
Next to a school, Next to what?
Witness:
Yes, but it’s a little bit far from the school, but next to a
school a little bit.
Judge:
Which café is near you?
Witness:
There is no café nearby.
Judge:
Not even a shop, near your home?
Witness:
We are far from a shop.
Judge:
Do you attend school, Godi?
Witness:
Yes
Judge:
hmmm, I am also Godfrey, but I am Ray for short, but I am Godfrey,
Now lets hear Godi, how old are you?
Witness:
13
Judge:
Which year were you born?
Witness:
(Silence)
Judge:
Do you know, which year you were born?
Witness:
No
Judge:
Yes, then it means you are now old, you are about to receive pension
money, not so, not too long, are you not old?
Witness:
No
Judge:
Do you know the difference in telling the truth and not telling
the truth, are you able to differentiate? Lies and truth, can you
differentiate?
Witness:
No
Judge:
You cannot differentiate the truth and the lies.
Witness:
Yes
Judge:
Are you able to tell the truth
Witness:
Yes
Judge:
When a person tells the truth, what will the person be telling?
Witness:
Things that the person is sure of
Judge:
Sure of, okay, you’re a clever boy.
Judge:
Now when a person wants to tell the truth, a person will swear by his
sister sometimes, is that not so?
Witness:
Yes
Judge:
Do you have a sister?
Witness:
Yes
Judge:
What is your sister’s Name?
Witness:
T M
Judge:
Have you ever told another person and said, I swear by my sister, T M
my mother’s child I am telling the truth, while
playing with
other’s, have you ever done that?
Witness:
Yes
Judge:
Alright, now here. When a person swear’s, the swears by God,
saying surely God help me, so that I tell only the truth,
are you
prepared to do that, to tell the truth today in what you came for.
Witness:
Yes
Judge:
OK, you can swear him in
Interpreter:
Now if it is like that indicating that you’ll tell the truth
the whole truth, you’ll raise your hand and
say God help me.
Witness:
God help me to tell the truth.’
(emphasis
added)
[9] Section 162 of the
Act provides:
‘
(1)
Subject to the provisions of sections 163 and 164, no person shall be
examined as a witness in criminal proceedings unless he
is under
oath, which shall be administered by the presiding judicial officer
or, in the case of a superior court, by the presiding
judge or the
registrar of the court, and which shall be in the following form:
'I
swear that the evidence that I shall give, shall be the truth, the
whole truth and nothing but the truth, so help me God.'.
(2)
If any person to whom the oath is administered wishes to take the
oath with uplifted hand, he shall be permitted to do so.’
And section 164 provides:
‘
(1)
Any person, who is found not to understand the nature and import of
the oath or the affirmation, may be admitted to give evidence
in
criminal proceedings without taking the oath or making the
affirmation: Provided that such person shall, in lieu of the oath
or
affirmation, be admonished by the presiding judge or judicial officer
to speak the truth.
(2)
If such person wilfully and falsely states anything which, if sworn,
would have amounted to the offence of perjury or any statutory
offence punishable as perjury, he shall be deemed to have committed
that offence, and shall, upon conviction, be liable to such
punishment as is by law provided as a punishment for that offence.’
[10] The
reading of s 162(1) makes it clear that, with the exception of
certain categories of witnesses either falling under s 163
or 164, it
is peremptory for all witnesses in criminal trials to be examined
under oath.
1
And the testimony of a witness who has not been placed
under oath properly, has not made a proper affirmation or has not
been properly
admonished to speak the truth as provided for in the
Act, lacks the status and character of evidence and is inadmissible.
2
[11] Section
164(1) is resorted to when a court is dealing with the admission of
evidence of a witness, who from ignorance arising
from youth,
defective education or other cause, is found not to understand the
nature and import of the oath or the affirmation.
Such a witness must
instead of being sworn in or affirmed, be admonished by the judicial
officer to speak the truth. It is clear
from the reading of s 164(1)
that for it to be triggered there must be a finding that the witness
does not understand the nature
and import of the oath. The finding
must be preceded by some form of enquiry by the judicial officer, to
establish whether the
witness understands the nature and import of
the oath. If the judicial officer should find after such an enquiry
that the witness
does not possess the required capacity to understand
the nature and import of the oath, he or she should establish whether
the
witness can distinguish between truth and lies
3
and if the enquiry yields a positive outcome, admonish
the witness to speak the truth.
[12] I now
turn to the facts of this case. Before receiving their evidence the
court below put certain questions to the child witnesses
in the
manner as set out above. Here, it is not clear from the questioning
of the witnesses by the court below what its purpose
was. Was it
intended to establish the capacity of the child witnesses to
understand the nature and import of the oath or was it
aimed at
establishing their ability to distinguish between truth and falsity?
The witnesses were simply sworn in, before their
capacity to
understand the nature and import of the oath was established. The
Constitutional Court made it plain in
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development & others
that:
4
‘
The
reason for evidence to be given under oath or affirmation or for a
person to be admonished to speak the truth is to ensure that
the
evidence given is reliable. Knowledge that a child knows and
understands what it means to tell the truth gives the assurance
that
the evidence can be relied
upon.
It is in fact a precondition for admonishing a child to tell the
truth that the child can comprehend what it means to tell
the truth.
The evidence of a child who does not understand what it means to tell
the truth is not reliable. It would undermine
the accused's right to
a fair trial were such evidence to be admitted. To my mind, it does
not amount to a violation of s 28(2)
to exclude the evidence of such
a child. The risk of a conviction based on unreliable evidence is too
great to permit a child who
does not understand what it means to
speak the truth to testify. This would indeed have serious
consequences for the administration
of justice
.’
The court went on to say
in para 167:
‘
When
a child, in the court's words, cannot convey the appreciation of the
abstract concepts of truth and falsehood to the court,
the solution
does not lie in allowing every child to testify in court. The
solution lies in the proper questioning of children;
in
particular, younger children. The purpose of questioning a child is
not to get the child to demonstrate knowledge of the abstract
concepts of truth and falsehood. The purpose is to determine whether
the child understands what it means to speak the truth. Here
the
manner in which the child is questioned is crucial to the enquiry. It
is here where the role of an intermediary becomes vital.
The
intermediary will ensure that questions by the court to the child are
conveyed in a manner that the child can comprehend and
that the
answers given by the child are conveyed in a manner that the court
will understand.’
[13] In argument counsel
for the State was, however, constrained to concede that even if we
were entitled to have regard to the
evidence in the reconstructed
record to determine the extent of compliance with the relevant
provisions of the Act it still does
not address the concerns we have
with regard to the manner in which the oath was administered to the
complainant and her brother.
[14] In the light of the
difficulties I have highlighted, I am not satisfied that there was
compliance with the provisions of s
162 read with s 164. That being
the case, no reliance can be placed on the evidence of the
complainant and her brother. Ngcobo
J made it clear in
Director of
Public Prosecutions, Transvaal
that the evidence of a child who
does not understand what it means to tell the truth is not reliable.
The appellant’s conviction
for rape can therefore not stand.
[15] However, in my view,
even if there had been proper compliance with s 164(1) of the Act,
the evidence presented was insufficient
to sustain a conviction on
the charge of rape. It is not in dispute that the complainant was
raped. This much appears from the
medical evidence. The issue is
about the identity of the perpetrator. Put differently, the case
turned on the reliability of the
complainant’s identification
of the appellant.
[16] The complainant’s
evidence was that in the early hours of the morning of 5 January
2000, the appellant who carried a
beer bottle in his hand, knocked on
the door of the house, in which she and her brother were sleeping.
They were alone in the house;
their mother was away visiting a
relative. When they refused to let him in, he broke open the window
through which he gained entry
into the house. When that happened, the
complainant’s brother, who was extremely terrified, fled
through the window leaving
the complainant behind with the appellant.
It was dark inside the house and a candle, the only source of
lighting in the house,
was not lit. This was the second encounter
that the complainant had with the appellant. The first encounter was
when the appellant
visited her house on 1 January 2000.
[17] The appellant
thereupon removed her from the house and took her to three different
places where he raped her. Thereafter the
appellant walked the
complainant halfway to her aunt’s place. The appellant told her
that should her aunt ask her as to who
had brought her to her place,
she should say it was Godi from Madombidzha. According to the
complainant when she arrived at her
aunt’s place she reported
to her that ‘Jeffrey’ had raped her. The complainant’s
brother testified that
he could not identify the suspect who came to
their house because he wore a sporty hat which covered his entire
face. In this regard
his evidence is to the following effect:
‘
And
this man who was there who came there and showed you the handle of
the knife, can you still remember him? - - - No.’
[18] The complainant’s
aunt’s evidence is that the complainant was reluctant to
disclose the identity of her assailant
to her. She had to probe and
coerce the complainant to get her talking. It was only then that the
complainant told her that she
had been with Godi from Madombidzha
area whom she identified as the person who raped her. The aunt
testified that the complainant
could not give a proper description of
Godi’s clothing, all that she could say was that he wore a
sporty hat and had dreadlocks.
It is significant to mention that
according to her aunt the complainant never mentioned the name of
Jeffrey to her although the
complainant was adamant during cross –
examination that she had done so. Her aunt confirmed that she
examined the complainant’s
vagina and when she observed
evidence of a sexual assault, she took her to a local police station
from where she was later conveyed
to Louis Trichardt Hospital for a
medical examination and where the complainant’s mother later
joined them.
[19] The complainant’s
mother’s evidence essentially related to what was conveyed to
her by the complainant and her
brother. According to her mother the
complainant related the incident to her while she was in hospital
shortly after having regained
her senses following a medical
examination which was conducted under general anaesthetic. What is
significant though is the following
evidence of the mother:
‘
Did
she point out any other person (indistinct) - - -
The
child did not point at anybody because the child was still in pain
because when the child was proceeding to point him out she
screamed
and retreated backwards saying that she saw him and she cannot get
closer to him to point him.’
[20] The appellant gave
evidence and denied being responsible for the rape on the
complainant. He could not recall where he was,
or what he did, on 5
January 2000. With regard to 1 January 2000, the date on which he is
alleged to have visited the complainant’s
house, his evidence
was that he never left his home on the day in question. He celebrated
New Year’s day at his house with
his family. He testified that
after his arrest the police held an identification parade in which he
was asked to participate. The
complainant attended the identification
parade but could not point him out.
[21] The court below
accepted the State’s version and rejected that of the appellant
as false. The basis for its acceptance
of the State’s version
is encapsulated in the following passages of the judgment:
‘
Indeed
it is very difficult to take the evidence of a small child as the
truth. The court must always exercise very great care in
admitting
the evidence of small children. However, in this instance, as we will
all remember, that T M gave evidence whilst sitting
in another room,
because of her age, and we only saw her on the screen, as she was
giving her evidence. One should also remember
that while she was in
that room she was always in the company of her mother. If it were
indeed her evidence alone, the court would
perhaps not accept it as
the truth, but then her brother, who is a minor, 13 years of age, who
was so frank, . . . (indistinct)
. . . and straightforward, gave
evidence.’
There is no
factual support for the court below’s finding that the
complainant’s brother ‘told the court all what
he saw’.
It was his evidence that he could not see the suspect’s face
because he had it covered with his hat which
he had pulled over his
eyes. In my view as far as the complainant’s brother’s
identification evidence is concerned,
it did not take the State’s
case any further. The fact that the complainant’s brother was
frank and straightforward
when he gave evidence does not provide
support for the acceptance of his identification evidence. It was not
enough for him to
be honest.
5
What is important is the opportunity he had for
recognising the appellant. The complainant’s brother could not
have had the
opportunity to observe the appellant as he fled the
scene before he could do so. The complainant’s description to
her aunt
of features by which she claimed to recognise Godi was
rather vague. It is clear from the court below’s treatment and
analysis
of the complainant’s evidence that it was alive to the
fact that her evidence standing alone was insufficient to sustain a
conviction, and for that reason it sought refuge in the evidence of
her brother whose identification evidence was in itself lacking
in
substance.
[22] The
only evidence regarding the rape is that of the complainant herself.
She is a single witness who is also a child and thus
her evidence was
subject to the cautionary rule to which it appears from the record
the court below failed to give proper consideration.
6
A disturbing feature of her evidence was the following:
‘
Thank
you my lord, T M what happened after the person who was sexually
assaulting you had
finished
what he was doing he directed to go to your aunt’s [kraal]? - -
-
I
cannot answer.
Why
can you not answer? - - - Because I am a small child.’
[23] The
complainant did not volunteer an account to her aunt of what had
occurred. The account she gave emerged in response to
questioning on
her part. She informed her aunt that she was raped by Godi. According
to her aunt’s evidence the name of the
appellant was never
mentioned to her, neither was she told that the name of Godi was
suggested by the appellant. During her testimony
the complainant
testified that she informed her aunt that the person who raped her
was the appellant but he told her that she should
say it was Godi.
Her mother’s evidence was that the complainant described her
assailant as ‘the boy who came home on
new year’s day and
she chased him away, that is Jeffrey Matshivha’. In
cross-examination the complainant’s mother
testified that her
children told her that ‘the person who came and knocked there
told [them] that he is Jeffrey who stays
at Madombidzha . . .’.
The incident occurred at night, while it was dark in the
house. I am not satisfied that the complainant’s evidence is
reliable
in the sense that she had a proper opportunity in the
circumstances of the case to carry out such observation as would be
reasonably
required to ensure a correct identification. No reliance
can be placed on the hearsay evidence of the complainant’s
mother
which contradicts that of the aunt to whom the complainant
made the first report. In my view all of this affected the
credibility
of the complainant and the reliability of her evidence.
[24] The
problems I have referred to above highlight the fact that the
prosecution of rape presents peculiar difficulties that always
call
for greater care to be given and even more so where the complainant
is young. As Nugent JA pointed out in
S v
Vilakazi
:
7
‘
From
prosecutors it calls for thoughtful preparation, patient and
sensitive presentation of all the available evidence, and meticulous
attention to detail. From judicial officers who try such cases it
calls for accurate understanding and careful analysis of all
the
evidence
.’
[25] In conclusion, I am
unable to find that the State has proved beyond reasonable doubt that
the appellant is the person who sexually
assaulted the complainant.
In these circumstances the conviction and sentence in respect of the
rape should be set aside.
[26] In relation to the
murder charge, the State relied on three pieces of evidence namely:
eye witnesses’ testimony, medical
evidence and the appellant’s
warning statement.
[27] It is common cause
that both the deceased and the appellant were at Madombidzha Bar
Lounge on 22 July 2000 between 20h00 and
22h00. An altercation ensued
between the deceased and the appellant which started when the
deceased drank from the appellant’s
beer bottle without the
appellant’s permission. The appellant, who had all along been
sitting with his friends at the table,
approached the deceased and
confronted him about his behaviour. The appellant grabbed hold of a
beer bottle from the deceased’s
hands and the latter resisted.
A tug of war ensued. At some stage during the struggle the deceased
fell on the window. One or two
persons who were with the appellant
intervened and separated the two. The appellant together with his
friends thereafter left the
bar lounge. When the deceased was later
attended to, it was noticed that he was bleeding. Shortly after the
incident the police
arrived at the scene and removed him to Louis
Trichardt Hospital. The deceased did not make it. He died on the way
to hospital.
The next morning the police arrested the appellant at Ms
Constance Mukosi’s house in connection with the murder of the
deceased.
According to the doctor who conducted a post mortem
examination on the deceased’s body, the cause of death was
excessive
loss of blood due to a stab wound in the main artery of the
chest.
[28] On the crucial issue
as to how the deceased sustained a stab wound to his chest the
evidence of the witnesses clashed. The
State adduced the evidence of
Mr Joseph Netshiungani (the bartender) and Ms Constance Mukosi (Ms
Mukosi). According to the bartender
the appellant arrived at the bar
lounge in the company of two other persons at about 22h00. The
deceased was amongst the persons
who accompanied the appellant. The
appellant and his friends proceeded to the dining room section of the
bar lounge. According
to this witness, although his primary
responsibility was to serve patrons at the counter, he was also
required to collect empty
bottles from various tables in the lounge.
Some two or three minutes later when the witness walked towards the
kitchen area, he
saw the appellant busy stabbing the deceased.
According to him, the appellant stabbed the deceased about three
times. The first
two stab wounds were inflicted on the back of the
deceased while he was at the dining hall section of the bar lounge.
The third
wound was inflicted when the deceased moved to the snooker
table area and that is where the deceased collapsed and leaned
against
the window. The appellant also kicked the deceased on the
chest.
[29] Ms Mukosi gave a
totally different version. According to her evidence when she arrived
at the bar lounge at about 20h00 she
found the appellant sitting at
the table with two other persons. The deceased approached the
appellant’s table and removed
a beer bottle which was on the
table and drank from it. The appellant told him to stop what he was
doing. The deceased again grabbed
the appellant’s beer and
drank it. When the appellant confronted the deceased about his
behaviour, the deceased responded
by hitting the appellant with a
fist on his face. Then a struggle between the two of them ensued. The
appellant banged the deceased
against the window causing a glass to
shatter. One of the persons who was sitting with the appellant got up
and intervened. He
restrained the appellant and removed him from the
bar lounge. Ms Mukosi left the bar lounge with the appellant and his
friend.
The appellant spent the rest of the night at her place until
the following morning when the police arrived and arrested him in
connection with the murder of the deceased. Ms Mukosi denied that the
appellant had a knife and that he had stabbed the deceased
with it.
[30] Inspector Mulaudzi,
who arrested the appellant at Ms Mukosi’s place testified that
when he approached the appellant about
the murder of the deceased,
the appellant denied that he had stabbed the deceased. He informed
Mulaudzi that he merely pushed the
deceased and the deceased fell
onto a window. In the warning statement the appellant repeated what
he had told Mulaudzi when he
arrested him. Doctor Maritz who
performed the post mortem examination on the body of the deceased
recorded one stab wound to the
right chest on the post mortem report.
[31] The appellant
testified in his defence and called a witness who essentially
corroborated his version. The appellant’s
version is that the
deceased fell on the window as they struggled over possession of a
beer bottle belonging to the appellant,
which beer bottle the
deceased had removed from the table at which he sat without the
appellant’s permission. The appellant
denied that he had
stabbed the deceased or that he had a knife in his possession on the
day of the incident. He said after the
deceased had taken possession
of his beer bottle, he confronted him about what he was doing. The
deceased responded by hitting
him with a fist on his mouth. As they
struggled over possession of the beer bottle, the deceased lost his
grip on the beer bottle
and fell on the window. One of the persons
who was sitting with the appellant namely, Mr Mukhauli Mudau
intervened and separated
them. Mudau suggested to the appellant that
they leave the place which they then did.
[32] Mudau testified and
his evidence corroborated that of Ms Mukosi and the appellant
regarding what led to the struggle between
the appellant and the
deceased. Mudau also denied that the appellant stabbed the deceased.
He did not witness the stabbing, neither
did he see the knife as
testified to by the bartender.
[33] The court below
rejected the appellant’s version as being not reasonably
possibly true. This finding was based on the
fact that the location
and the depth of the stab wound were irreconcilable with the
appellant’s version. The court below
reasoned that if the
appellant’s version was correct, the stab wound would have been
located on the back of the deceased’s
body not in the chest
area. It rejected Ms Mukosi’s evidence as unreliable on the
ground that she had lied about her relationship
with the appellant.
[34] In my
view the evidence adduced by the State was not such as to justify the
conclusion that there is no reasonable possibility
that the account
of the appellant was not a truthful account. I do not share the court
below’s finding that the bartender’s
evidence was
reliable because ‘he saw all these incidents while standing at
the kitchen’. He was a single witness and
therefore there was
an obligation on the court below to have approached his evidence with
caution.
8
The bartender testified about three stabbings for which
there is no support. In fact,
the objective
medical evidence contradicts the bartender’s evidence that the
deceased was stabbed thrice. He is the only witness
who testified
about a knife having been used. Ms Mukosi, one of the State
witnesses, contradicts his evidence and Ms Mukosi’s
evidence is
corroborated by that of Mudau. There is a disturbing feature in the
bartender’s evidence which when considered
in the light of the
totality of evidence, in my view,
appears
improbable and renders his evidence less reliable. His evidence was
that the appellant and the deceased were together when
they arrived
at the bar lounge and some two or three minutes later he saw the
appellant stabbing the deceased without any reason.
That is not
consistent with the evidence of the other eye witnesses.
Moreover, how, it must be asked, could he have seen two
blows to the deceased’s back with a knife, when there was no
corroboration
for that, to be found in the medical evidence? Nowhere
in its evaluation of the evidence does the court below deal with
these shortcomings
in the bartender’s evidence.
[35] In these
circumstances, the conviction on the murder charge also cannot stand
and must be set aside.
[36] In the result the
appeal succeeds and the convictions and sentences for rape and murder
are set aside.
___________________
D H Zondi
Acting Judge of Appeal
APPEARANCES
For Appellant: M Madima
Instructed by:
Justice Centre,
Thohoyandou;
Justice Centre,
Bloemfontein
For Respondent: A I S
Poodhun
Instructed by:
The Director of Public
Prosecutions, Thohoyandou;
The Director of Public
Prosecutions, Bloemfontein
1
S
v Mashava
1994 (1) SASV 224 (T) at 228
c
–
d
;
S
v N
1996 (2) SACR 225
(C) at 227
b
–
c
;
S v
Seymour
1998 (1) SACR 66
(N);
S v Vumazonke
2000 (1) SACR
619
(C) para 10;
S v Raghubar
2013 (1) SACR 398
(SCA).
2
D
T Zeffertt and A P Paizes
The South African Law of Evidence
2
ed (2009) at 813.
3
S
v N
229
d
–
g
.
4
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development & others
2009 (2) SACR 130
(CC)
para 166.
5
S
v Mthetwa
1972 (3) SA 766
(A) at 768A–B.
6
R
v Mokoena
1932 (OPD) 79 at 80;
S v Sauls & others
1981 (3) SA 172
(A);
Woji v Santam Insurance Co
Ltd
1981 (1) SA 1020
(A).
7
S
v Vilakazi
2009 (1) SACR 552
(SCA) para 21.
8
R
v Mokoena
1932 OPD 79
at 80
; S v Sauls & others
1981
(3) SA 172
(A).