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2023
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[2023] ZAFSHC 210
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Mokhethi v S (A145/2022) [2023] ZAFSHC 210 (30 May 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
case no
:
A145/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the appeal of:
SEHLOHO
ZACHARIA MOKHETHI
Appellant
and
THE
STATE
Respondent
CORAM:
MOLITSOANE,
J et CRONJé, AJ
HEARD
ON:
8
MAY 2023
JUDGMENT
BY:
MOLITSOANE,
J
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and released to SAFLII.
The
date and time for hand-down is deemed to be 30 May 2023 at 12h30.
[1]
The Appellant was convicted
on
one
count of murder read with the provisions of
Section 51(1)
of the
Criminal Law Amendment Act, 105 of 1997
. The court a quo having found
substantial and compelling circumstances sentenced the appellant to
fifteen years’ imprisonment.
Aggrieved by the order of the
court a quo, he appeals the conviction with leave of the said court.
[2]
The facts of this case are briefly as follows: The appellant was
married
to Irene Motsheare. On 22 December 2018 the appellant went to
the parental home of his wife. The appellant met one Daniel Mofokeng
also known as Phoka (the deceased). He had an altercation with him
(the deceased) as a result of which his mother in law chased
them
away. The following morning the appellant arrived again at his
in-laws’ home to collect his passport. He was in the
company of
two unknown people.
[3]
The version of the state is that he had a firearm in his possession
and three
bullets which he shown to his mother in law and her
daughters. This part of the evidence is disputed by the appellant.
The version
of the state is further that after appellant had shown
the firearm and bullets, he also said that he would look for the
deceased
and would shoot him with the three bullets he had in his
possession. This version is also denied by the appellant.
[4]
Mr Motjhale testified for the state. He was on that day going to a
certain
farm. His evidence is that the appellant, who is known to
him, asked for a lift in his motor vehicle in order to visit his
sister
on the same farm. Along the way, appellant informed him that
he was involved in a fight. The appellant also told him that the
person
with whom he fought had an affair with his wife. The appellant
had a plastic bag in his possession which contained a black object.
He could not tell what the object was. He confirmed that the accused
said he shot someone although he did not say who.
[5]
Mr Leeto testified that he was at the tavern drinking when he saw the
appellant
at the gate after hearing a loud bang. I will revert to his
testimony in detail later in this judgment. The rest of the testimony
does not take this case any further.
[6]
The version of the appellant boils down to a denial in the killing of
the deceased.
[7]
The Appellant assails the conviction on the following grounds:
3.1
That the Court a quo erred in finding that the state had proved its
case beyond reasonable doubt;
3.2
That the Court erred in not properly analysing or evaluating the
evidence of the State witnesses and considering
the improbabilities
inherent in the version of the state;
3.3
That the court erred in its application of the test on circumstantial
evidence.
[8]
This appeal turns on the sufficiency of the circumstantial evidence
upon
which the trial court convicted the appellant.
[9]
It is trite law that the onus rests upon the state to prove the guilt
of the accused beyond a reasonable doubt. The appeal Court will
normally accept the factual findings made by the trial Court, unless
the Court finds that same were clearly wrong or a mistake was
committed. In
S
v Hadebe and Others
[1]
the court said:
“
Before
considering the submissions, it would be well to recall that there
are well established principles governing the hearing
of appeals
against findings of fact. In short, in the absence of demonstrable
and material misdirection by the trial court, its
findings of fact
are presumed to be correct as will only be disregarded if the
recorded evidence shows them to be clearly wrong.”
[10]
As indicated above, the determination of the sufficiency of the
circumstantial evidence
is at the heart of this appeal. The court in
S
v Ntsele
[2]
held that when dealing with circumstantial evidence, the court was
not required to consider every piece of evidence separately.
It
was the cumulative impression, with all the pieces of the evidence
made collectively, that had to be considered in order to
come to a
finding of guilt.
[11]
S
v Reddy
[3]
is instructive in the approach to be followed in the assessment of
circumstantial evidence. In this case it was held as follows;
“
In
assessing circumstantial evidence one needs to be careful not to
approach such evidence upon a piece-meal basis and to subject
each
individual piece of evidence to a consideration of whether it
excludes the reasonable possibility that an explanation given
by an
accused is true. The evidence needs to be considered in its totality.
It is only then that one can apply the oft-quoted dictum
in
R
v Blom
[4]
,
where reference is made to two cardinal rules of logic which cannot
be ignored. These are firstly that the inference sought to
be drawn
must be considered with all the proved facts, and secondly, the
proved facts should be such that they exclude very reasonable
inference from them save the one sought to be withdrawn.”
[12]
The essence of the state case is that the appellant arrived at the
parental home
of his wife. He was in the company of two other people.
He had a firearm and three bullets in his possession. There is a
contradiction
between the evidence of the appellant’s wife and
sister in law and that of their mother regarding the firearm. The
mother
testified that the appellant arrived at her home carrying a
firearm in his hand. On the other hand, her daughters, testified that
when the appellant entered their yard, he lifted the top of the
garment he was wearing and showed them the firearm on his waist.
The
court a quo found that the contradiction was immaterial. That finding
cannot be faulted. It has to be remembered that contradictions
on
their own do not necessarily lead to the rejection of the evidence of
the witness(es). Such contradictions may simply be indicative
of an
error.
[5]
The version of the
state is that he made threats about killing the deceased.
[13]
The appellant thereafter took a lift with one Mr Motjhale. The
testimony of this
witness was less than candid. The trial court also
formed a view that this witness tried to protect the appellant on the
issue
of the firearm but the court believed him on the allegation
that appellant told him that he shot someone who had an affair with
his wife. I find it difficult to agree with the reasoning of the
court a quo in this regard.
[14]
In the evidence in chief when asked what the appellant
had in his possession, he initially
said he had a white plastic bag
containing a black item he could not tell what it was. It was never
his testimony that the appellant
showed him the plastic bag. The
impression he created was that it was out of his own observation that
he saw the plastic with the
black object. He blamed the investigating
officer for this discrepancy saying that he (the investigating
officer) told him not
to mention this in his statement. With regard
to what later transpired during cross examination, the record
[6]
further reveal the following:
MR
MAZIBUKO: If someone can come and inform the court that you said that
the accused show you a firearm, a revolver, the black revolver,
what
you going to say?
Mr MOTJHALE: What I
said to Mr Mofolo was that the item or the object which was black
inside this white plastic, it looked or appeared
like a wheel.
COURT: Like a wheel?
MR MOTJHALE: A wheel,
then Mofolo then said, it is impossible, because that person has shot
someone.
MR MAZIBUKO: So Mofolo
is the one who said you must say that the accused show you?
Yes. The item which I
said looked like a wheel, wheel.
COURT:
Wheel?
Mr MOTJHALE: Wheel.
Mofolo said that is the very same item which is the firearm.
MR MAZIBUKO: Of which
you cannot confirm?
MR MOTJHALE: I can
confirm.
[15]
Clearly the testimony of Motjhale vacillated from not knowing what
the appellant
had in his possession, to the item being a wheel and
lastly to confirming that what the appellant had in his possession
was a firearm.
Although he did not testify about the fact that the
appellant had shown him the firearm in his evidence in chief, the
chickens
came home to roost when he was confronted with his previous
statement to the police. It is clear that he changed his
version as he went along. I can find no reason why the court a quo
rejected his version on the aspect of the firearm but chose
to
believe him when he said that the appellant told him that he shot
someone. His evidence is riddled with inconsistencies and
cannot be
seen as credible.
[16]
The testimony of the last state witness which the court a quo heavily
relied upon
to conclude that the appellant is the person who shot the
deceased shows nothing of the sort. Mr Leeto testified that he
was at the tavern drinking with one Setlha. While he was there they
suddenly heard a loud noise which sounded like a firecracker.
When he
raised his eyes he saw the appellant standing about 8 to 10 metres
away at the gate of the tavern. According to him the
appellant had a
plastic bag in his possession. He did not know what was in the
plastic bag. He also noted that after the bang he
saw a mark on the
wall. He testified that he and Setlha ran away.
[17]
The testimony of Leeto reveal that he heard a loud bang as a result
of which he immediately raised
his head. When he looked he saw the
appellant with a plastic bag in his possession. He did not see a
firearm in the hands of the
appellant even though he looked at the
direction of the appellant. From the mobility of this scene one would
have expected him
at least to see the firearm if any in the hands of
the appellant. He did not testify about seeing the deceased after
being shot.
What he later saw was a chip on the wall as if caused by
a bullet which begs the question whether someone else fired the shot
as
he did not see the appellant with a firearm. The evidence led is
in my view insufficient to draw an inference that the appellant
is
the person who shot the deceased. The conviction cannot stand and has
to be set aside. The sentence consequently also stands
to be set
aside. I accordingly make this order:
ORDER
1.
The appeal against the conviction is upheld.
2.
The conviction and the sentence are hereby set aside and the order of
the court a quo is replaced
with the following:
“
The accused is
found not guilty on the charge of murder.”
P.E.
MOLITSOANE, J
I
agree
P
R CRONJé, AJ
On
behalf of the Appellant:
Ms
V Abrahams
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of the Respondent:
Adv.
D Pretorius
Adv.
A Bester (Heads of Argument)
Office
of the Director of Public Prosecutions
BLOEMFONTEIN
[1]
1997(2) SACR 641(SCA) at 645 e-f; See also
S
v Naidoo and Others
2003(1) SACR 347(SCA) at para 26.
[2]
1998(2)
SACR 178(SCA).
[3]
1996(2)
SACR 1 (A) at 8C-D.
[4]
1939
188((AD)
at 202-203.
[5]
See
S v Oosthuizen 1982(3) SA 571(T).
[6]
Page 0052-0053.