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[2022] ZAFSHC 227
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Pepenene v S (A55/2016) [2022] ZAFSHC 227 (21 February 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
no:
A55/2016
In
the matter between:
PITSO
EDWARD PEPENENE
Appellant
and
THE
STATE
Respondent
CORAM
:
DAFFUE J
et
MATHEBULA J
HEARD
ON
:
21 FEBRUARY 2022
DELIVERED
ON
:
21
FEBRUARY 2022
JUDGMENT
BY:
DAFFUE J
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The date and time for hand-down is deemed to be 13h00 on 21 February
2022.
I
INTRODUCTION
[1]
The appellant was arraigned in the Regional Court, Bloemfontein on a
charge of murder in that on or about
10 March 2008 he murdered his
wife, Khathazwa Susan Penenene. On 29 February 2012 he was convicted
as charged and on 27 March 2012
he was sentenced to 16 years’
imprisonment.
[1]
[2]
On 23 June 2014 the appellant successfully applied for leave to
appeal the conviction and sentence imposed
and at the same time bail
was granted pending appeal.
[2]
[3]
The case was in the first place unnecessary dragged out in the court
a quo
in that it was finalised about four years after the
appellant’s first appearance. Then another two years lapsed
before leave
to appeal was granted. More chaos occurred since then in
the High Court. A first appeal number was allocated in 2014, then
another
in 2015, but eventually the present appeal number was
allocated in 2016. Now, six years later, the appeal was
eventually
heard. Serious problems were experienced with the
transcription of the record as is apparent from the notes of legal
representatives
placed in the court file. I do not intend to set out
any detail in this regard, but merely wish to reiterate that a
travesty of
justice has occurred. Fortunately, and bearing in
mind the outcome of this appeal, the appellant was successful in his
bail
application. If that was not the case, he would have been
incarcerated for another eight years.
[4]
The record is still not complete. I have referred to a similar
situation in
S
v Nkhahle
[3]
in which judgment I dealt with the problems experienced regularly
pertaining to incomplete appeal records. I merely wish to quote
two
paragraphs from the judgment in which I dealt with the
dicta
of both the Constitutional Court and Supreme Court of Appeal:
[4]
“
[19] The
Constitutional Court referred in
Phakane
with approval
of
S v Joubert
where the Appeal Court, as it was known
then, stated:
'If
this failure [the incomplete record] cannot be rectified, as in this
case, it seems to me that the conviction cannot stand,
because it
cannot be said that there has not been a failure to justice.'
[20] In
S v
Chabedi
the Supreme Court of Appeal held as follows:
'On appeal, the record
of the proceedings in the trial court is of cardinal importance.
After all, that record forms the whole basis
of the rehearing by the
Court of appeal. If the record is inadequate for a proper
consideration of the appeal, it will, as a rule,
lead to the
conviction and sentence being set aside. However, the requirement is
that the record must be adequate for proper consideration
of the
appeal; not that it must be a perfect recordal of everything that was
said at the trial. As has been pointed out in previous
cases, records
of proceedings are often still kept by hand, in which event a
verbatim record is impossible . . . .'”
[5]
Bearing in mind the following aspects it might have been appropriate
to uphold the appeal on technical grounds
due to the incomplete
record:
(a)
The court
a quo
relied heavily on the evidence of the
appellant’s stepson in respect of the identification of the
trousers when he was called
back to the witness stand. This
evidence has not been transcribed and we are not in a position to
evaluate the judgment in
this regard;
(b)
The evidence of the medical doctor has also not been transcribed, but
this may not be that crucial bearing
in mind the admissions made by
the appellant;
(c)
The full evidence of the appellant’s witness does not form part
of the record. The appellant was
accused by the court
a quo
of coaching his witness and therefore, credibility findings were
made against both the appellant and his witness. Again it
is
not possible for us to properly evaluate the judgment due to the
incomplete record.
[6]
Instead of upholding the appeal and setting aside the conviction and
sentence based on an incomplete record,
as we could have done, we are
in a position to adjudicate the appeal on the merits for the reasons
that will soon become clear.
II
GROUNDS OF APPEAL
[7]
The most relevant ground of appeal is that the court
a quo
erred in not considering the material contradiction between the
versions of the Investigating Officer (“IO”) and Captain
Lekone in respect of the discovery of the trousers that allegedly
belonged to the appellant. Furthermore, the court
a quo
failed to take into consideration the photographer, Inspector
Beckman’s evidence to the effect that several members of SAPS
had access to the appellant’s house before he arrived to take
photographs.
[8]
The appeal against sentence is in essence directed at the court
a
quo
’s failure not to accept that substantial and compelling
circumstances existed that warranted a departure from the prescribed
minimum sentence.
III
THE JUDGMENT OF THE COURT
A QUO
[9]
Before I proceed to deal with the court
a quo
’s reasons
for convicting the appellant, I need to emphasise that the evidence
of several witnesses could safely be accepted
as credible and
reliable. Unfortunately for the State’s case the
circumstantial evidence did not suffice in order to
justify a
conviction. Although many fingers point towards the guilt of
the appellant, a proper analysis of the evidence presented
by the
State should be undertaken. Before then, the following aspects
in the judgment are highlighted:
9.1 The court
a
quo
stated that “as we all know, DNA has been found to be the most
reliable method of proving identity.”
[5]
9.2 After criticizing the
appellant with reference to five specific issues,
[6]
the court
a
quo
acknowledged that there was “one important shortcoming in the
state case, and it is on who found the pair of trousers, and
where.”
[7]
9.3
The court
a
quo
dealt with the different versions, but instead of subjecting the
differences to proper scrutiny, merely held that the appellant’s
stepson was certain that the trousers belonged to the accused.
[8]
It continued to hold that it sounded far-fetched that the IO would
plant DNA on the trousers.
9.4 The court
a
quo
was
severely critical of the evidence presented by the appellant’s
witness and accused the appellant of “coaching”
the
witness.
[9]
IV
ADJUDICATION OF THE APPEAL
[10]
A court of appeal will not likely intervene with the credibility
findings of the trial court. In the absence of an irregularity
or
misdirection the court of appeal is bound by such credibility
findings, unless it is convinced that such findings are clearly
incorrect.
[10]
[11]
When an appeal is lodged against the trial court’s findings of
fact, the court of appeal should take into account
that that court
was in a more favourable position than itself to form a judgment
because it was able to observe the witnesses during
their questioning
and was absorbed in the atmosphere of the trial.
[11]
Therefore, the court of appeal will normally accept factual findings
made by the trial court, unless there is some indication
that a
mistake was made. More recently the Supreme Court of Appeal
summarised the approach as follows:
[12]
“
Before considering
these submissions it would be as well to recall yet again 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 and will only be disregarded if the
recorded evidence shows them to be clearly
wrong. The reasons why
this deference is shown by appellate courts to factual findings of
the trial court are so well known that
restatement is unnecessary.”
[12]
In concluding the topic and to reiterate: if the court of appeal is
merely left in doubt as to the correctness of the
factual conclusions
arrived at by the trial court, it will uphold them. The Supreme Court
of Appeal restated the principle as follows
in
Naidoo
:
[13]
“
In
the final analysis, a Court of appeal does not overturn a trial
Court’s findings of fact unless they are shown to be vitiated
by material misdirection or are shown by the record to be wrong.”
[13]
The court of appeal should be hesitant to search for reasons that are
in conflict with the trial court’s conclusion.
However, in
order to prevent a convicted person’s right of appeal to be
illusionary, the court of appeal has a duty to investigate
the trial
court’s factual findings in order to ascertain their
correctness and if a mistake has been made to the extent that
the
conviction cannot be upheld, it must interfere.
[14]
V
EVALUATION OF THE COURT
A QUO
’S JUDGMENT AND THE
PARTIES’ SUBMISSIONS
[14]
The assessment of evidence must be approached in a holistic manner
geared towards the determination whether the guilt
of the accused
person (appellant) has been proved beyond reasonable doubt. This was
eloquently stated by Heher AJA (as he then
was) as follows:-
“
The correct
approach is to weigh up all elements which point towards the guilt of
the accused against all those which are indicative
of his innocence,
taking proper account of inherent strengths and weaknesses,
probabilities and improbabilities on both sides and,
having done so,
to decide whether the balance weighs so heavily in favour of the
State as to exclude reasonable doubt about the
accused’s
guilt”
[15]
[15]
I now turn to the evaluation of the evidence by the court
a quo
.
At the outset, I am of the view, that the magistrate misdirected
himself in his application of the law to the facts, given the
evidence on record. I shall deal only with the most glaring
aspects.
[16]
The test for circumstantial evidence is well-known. In
R
v De Villiers
[16]
the court again explained the test enunciated in
R
v Blom.
Not
even the test for adjudicating circumstantial evidence as set out by
Zulman AJA (as he then was) in
S
v Reddy and Others
[17]
could assist the State to obtain a conviction.
[17]
I am satisfied that the evidence of the State witnesses, Mrs Ndlela,
the appellant’s stepson Ismael, Mr Nwenya,
Mr Morake and the
reservist Sejaname could have been accepted, save in so far as Ismael
might have been wrong in respect of the
identification of the
trousers. But even so, all these versions, taken together, were
wholly insufficient to convict, contrary
to the observations made in
Reddy
supra
.
The distance between the place where the deceased’s body was
found and the appellant’s house, the medical evidence,
and
especially the evidence of the forensic expert, Mrs Michelle Thompson
are extremely relevant evidence that tend to point to
the appellant’s
guilt. The admissions made
[18]
in terms of s 220 of the Criminal Procedure Act
[19]
also went a long way in alleviating the burden on the State to prove
its case beyond reasonable doubt. It was
inter
alia
admitted that blood samples taken from both the appellant and the
deceased were correctly sent to and analysed at the Forensic
Science
Laboratory. Did this take the State’s case far enough?
Surely not, as I will explain.
[18]
It is permissible to test an accused’s version against the
inherent probabilities, but it cannot be rejected merely
because it
is improbable. It can only be rejected on the basis of the inherent
probabilities if it can be said to be so improbable
that it cannot
reasonably possibly be true.
[20]
[19]
The court
a
quo
subjected the appellant’s version to severe scrutiny.
After stating that the appellant generally stuck to his version,
five
points of criticism were raised, but according to the court
a
quo
the
final straw that broke the camel’s back was the coaching of his
witness. This caused the court
a
quo
to
say the following: “ it becomes clear what type of person the
court has to view the accused at.”
[21]
[20]
The same scrutiny with which the appellant’s evidence was
considered is absent when the evidence of the police
officers, the
IO, Captain Lekone and even Inspector Beckman was evaluated. In fact,
there was no evaluation and the evidence was
just accepted. It could
not be held that the trousers were found in the appellant’s
house on 11 March 2008. The court
a
quo
erred. It did not indicate whose version it accepted. Both
police officers were adamant, but both could not be correct. There
is
no possibility of an innocent mistake. This must be considered in
light of serious discrepancies and improbabilities in their
versions
as well as the fact that the court
a
quo
already held in its judgment in the trial-within-a-trial that the
warning statement was not made freely and voluntarily.In this
regard
the court
a
quo
emphasised that, unlike as vividly testified by the IO that he and
Lekone were present during the appellant’s interview,
the
Captain did not say a word about being present. The court
a
quo
correctly frowned about this as “obviously Captain Lekone’s
evidence was meant to corroborate Inspector Ndaleni on
the fact that
the statement was made freely and voluntary.”
[22]
The IO was adamant that the Captain was also present when the warning
statement was read back to the appellant and signed by him.
[23]
[21]
Beckman explained that when he arrived to take photos at the
appellant’s house on 10 March 2008 there were already
several
police officers in the house that had to be asked to exit it for him
to do his work. This is in line with the appellant’s
version
that his house was ransacked as the officers were apparently
searching for clues. None of the photos taken by Beckman
confirm positively that bloodstains were found in the premises.
The most crucial aspect in Beckman’s evidence
is the failure to
deal with the trousers handed to him the next day. He also
received shoes at that time. He inspected
the shoes, could not
find any possible bloodstains and handed the shoes back.
However, the trousers were merely taken without
inspecting same and
no conversation took place about any bloodstains found thereon.
Any reasonable person who had obtained
possession of trousers in the
circumstances as the IO wanted the court to believe, would have told
his colleague about the obvious
bloodstains for the photographer to
note same and to photograph the damning evidence. This did not occur
and the question is why
not. There can be three possible
answers; either there were no blood stains on the trousers at that
stage, or there were,
but the trousers were contaminated before
police officers arrived at the appellant’s house, or thereafter
and during their
investigations.
[22]
In order to consider answering the question posed in the previous
paragraph, the chaos in the house before the arrival
of the
photographer and the far-fetched versions of the IO and Captain
Lekono must be considered. It must be remembered that
the
appellant denied that the trousers belonged to him, but even if he
lied in this regard, he denied that the trousers were found
in his
house and in his presence.
[23]
Let me firstly deal with the IO’s version. According to
him he and Captain Lekone took the appellant to his
house after he
had made his warning statement on 11 March 2008. He testified
that they “…were going to look
for any clothing that had
bloodstains on it”,
[24]
notwithstanding the fact, I may say, they had ample opportunity to do
that the previous day. According to him “
we
found the khaki pants or trousers that
we
found hidden underneath the matras (sic); Yes,
we
lifted the matras up and found it underneath.”
[25]
(my emphasis.) This happened in the appellant’s
presence. Later on he changed “
we
”
to “
I
”.
He did not
ex
facie
his evidence needed to point this out to the Captain and as strange
as it may sound, neither of them discussed the bloodstains
apparently
found on the trousers. He merely confronted the appellant who
denied having knowledge of the bloodstains.
This extremely
important aspect – the visible bloodstains on the trousers -
was also not conveyed to Beckman. I say
this as neither the IO,
nor Beckman testified about such conversation and in any event,
Beckman also testified that he did not
inspect the trousers which
were folded when handed over to him.
[26]
[24]
Captain Lekone gave a diametrically opposed version to that of the
IO. According to him the appellant took out trousers
and handed same
to him, saying that these were the trousers he was wearing that
day.
[27]
The Captain
handed the trousers to the IO, but no fuss was made as could be
expected. Instead of immediately calling the
IO and showing him the
bloodstained trousers taken out by the appellant, he waited a while
and only after they had exited the house,
he handed over the exhibits
to the IO. This is just so unbelievable that it is not possible to
accept it as the truth. Even when
confronted with the IO’s
version, he found that surprising and insisted that his version was
correct.
[28]
[25]
I would rather let a guilty person free, than convict an innocent
person. The material contradiction of senior members
of the South
African Police Service is deplorable. In fact, they contradicted each
other from the moment they fetched the appellant
for his warning
statement containing so-called admissions which were nothing but
amounted to a confession of murder. The allegations
contained in the
document which the court
a quo
correctly held to be
inadmissible, could have been concocted by anyone that visited the
scene the previous day. The appellant did
not have to prove his
innocence. The court
a quo
should have given the appellant the
benefit of the doubt that had been caused due to sloppy investigation
and material contradictions
in the evidence of the police witnesses
mentioned above.
VI
CONCLUSION
[26]
Although several fingers point to the appellant as the guilty party,
the court
a quo
misdirected itself as mentioned. The
effect thereof is that the conviction cannot stand.
VII
THE ORDERS
[27]
The following orders are issued:
1. The appeal
succeeds.
2. The
conviction and sentence are set aside and the order of the court
a
quo
is substituted with the following: “The accused
is found not guilty on the charge of murder and acquitted.”
J
P DAFFUE J
I
concur
M
A
MATHEBULA J
On behalf of the
Appellant: Adv
L Smit
Instructed by:
Legal
Aid Board
BLOEMFONTEIN
On behalf of the
Respondent: Adv T September
Instructed by:
Office
of the DPP, Free State
BLOEMFONTEIN
[1]
Record:
pp 390 & 409
[2]
Written
note of Regional Court Magistrate Matthews
[3]
2021(1)
SACR 336 (FB)
[4]
Nkhahle
paras 19 & 20
[5]
Judgment:
p 388/22
[6]
Judgment:
p 387/10 – 388/8
[7]
Judgment:
p 388/8 & 9
[8]
Judgment:
p 388/14 & 15
[9]
Judgment:
p387/2-9 & 389/6-10
[10]
S
v Francis
1991 (1) SACR 198
(A) at 204 c-e; S v Mkohle
1990 (1) SACR
95
(A) at 100e
[11]
Schmidt
and Rademeyer, Law of Evidence, LexisNexis ed para 3 – 40 &
judgments relied upon
[12]
S v Hadebe
1997 (2) SACR 641
(SCA) at 645 e-f
[13]
S
v Naidoo & others
2003(1)
SACR 347 (SCA) at para 26; see also the following
dictum
of the SCA in
Beukes
v Smith
2020
(4) SA 51
(SCA) at para 22:
“
It
is trite that the powers of an appeal court to overturn factual
findings by a trial court are restricted. But where the
findings of a trial court are based on false premises or where
relevant facts have been ignored, or where the factual findings
are
clearly wrong, the appeal court is bound to reverse them.”
[14]
S
v M
2006
(1) SACR 135
(SCA) para [40]
[15]
S v Chabalala
2003
(1) SACR 134
(SCA) at para 15
[16]
1944 AD 493
at 508-9
[17]
1996(2) SACR 1 (A) at 8i
[18]
Record,
p 264/19 – p265/8
[19]
51
of 1977
[20]
S v
Shackell
2001 (2) SACR 185
(SCA) at para [30]
[21]
Record:
p 387/10 – p 388/8
[22]
Record:
p 213/5-15
[23]
Record,
p 86/8-13
[24]
Record:
p 87/10-11
[25]
Record:
p 87/10-24
[26]
Record,
p 223/12 – p 224/6
[27]
Record,
p 159/5-9
[28]
Record,
p 171/11-20