Mokoena v S (A138/2021) [2022] ZAFSHC 368 (26 July 2022)

80 Reportability

Criminal Law

Brief Summary

Criminal Law — Appeal against conviction — Appellant convicted of murder and sentenced to 13 years’ imprisonment — Grounds of appeal included alleged misdirection by trial court in accepting single witness testimony and dismissing appellant's alibi — Trial court found single witness credible despite minor contradictions — Court of appeal upheld trial court's findings, emphasizing the limited grounds for interference with credibility assessments — Conviction confirmed as the evidence was sufficient to support the verdict beyond a reasonable doubt.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal to the High Court of South Africa, Free State Division, Bloemfontein, against a conviction and sentence imposed by the Regional Court held at Bethlehem. The appellant, Tsietsi David Mokoena, appealed against his conviction for murder (read with the minimum sentence provisions), and the respondent was the State.

The procedural history was that the appellant was convicted on 4 October 2019 of murder read with section 51(2) of the Criminal Law Amendment Act 105 of 1997, and sentenced to 13 years’ imprisonment. The trial court granted leave to appeal against conviction on 28 February 2020. The appeal was heard on 16 May 2022 and judgment was delivered electronically on 26 July 2022.

The dispute concerned whether the State had proved the appellant’s guilt beyond reasonable doubt, in circumstances where the conviction effectively depended on the evidence of a single eyewitness whose account contained contradictions, and where the trial court had treated the matter as capable of proof by inference in the absence of direct evidence of the stabbing.

2. Material Facts

The material facts, as relied upon in the appeal judgment, arose from an incident on 5 August 2017 at approximately 08h00. The State’s case at trial depended primarily on the evidence of Mr Teboho (Tebogo) Nyama, who stated that he was at his home when he was called by Moeketsi Nhlapo to come outside and see what was happening in the street. He then encountered an altercation involving the appellant and another person who was on the ground (later identified as the deceased). Mr Nyama stated that he intervened by grabbing the appellant and removing him, and that he summoned the police and ambulance services. When police arrived, he indicated that he knew who was involved and took them to the appellant’s home, where the appellant was arrested.

A key feature of the State witness’s account, as highlighted by the appeal court, was that it shifted between different descriptions of what he observed. In parts of his testimony he described the appellant as “stepping” on the person on the ground; elsewhere he described the situation as “fighting”; and at points he suggested that he saw the appellant “stabbing” the person. His police statement, which was admitted in cross-examination, recorded that he did not see the fight because, on arrival, the other person was already on the ground, although it also referred to the two as “fighting.” The record also reflected that the prosecutor expressed confusion during examination about how the witness’s various descriptions could be reconciled.

The State led evidence from Sergeant Andries Mzangoa and Captain Petrus Mbambo relating to alleged confessions. However, the trial court accepted the appellant’s explanation of what transpired between him and those officers as reasonably possibly true, with the consequence that this evidence did not advance the State’s case in the manner originally intended. The appeal judgment further remarked that, in any event, the evidence of Sergeant Mzangoa would have been impermissible with reference to section 217 of the Criminal Procedure Act 51 of 1977.

The appellant’s version at trial was a denial that he was at the scene at the relevant time. He admitted that on 4 August 2017 he had been at Mr Nyama’s premises (after returning from a funeral) and purchased liquor there. He stated that he had a knife which he handed to Mr Nyama and that at approximately 04h00 Mr Nyama returned the knife to him when closing. The appellant then left and went home. He maintained that at about 08h00 (the time of the incident) he was not at the crime scene.

The appeal judgment treated as material the fact that the State’s case ultimately depended on a single witness and that other identified witnesses were not called, leaving the State evidence uncorroborated on the central issue of what the witness actually observed and whether it established the appellant’s guilt beyond reasonable doubt.

3. Legal Issues

The central legal question was whether the trial court was correct in concluding that the State had proved the appellant’s guilt beyond reasonable doubt, given that the conviction rested substantially on the evidence of a single witness whose evidence contained contradictions relevant to the actus reus and the identification of the conduct constituting murder.

Closely related issues were whether the trial court properly applied the cautionary approach applicable to single-witness evidence, and whether it correctly treated the matter as capable of proof through circumstantial reasoning (inference) despite there being no direct evidence, accepted by the court, that the appellant stabbed the deceased.

The dispute was primarily one of the application of law to fact, including the assessment of credibility and reliability and whether the proved facts justified the inference of guilt to the exclusion of other reasonable inferences. It also engaged the appellate standard for interfering with factual and credibility findings made by a trial court.

4. Court’s Reasoning

The appeal court began by reaffirming the limits on appellate interference with findings of fact and credibility. It referred to the established approach that an appellate court must recognise the trial court’s advantage in seeing, hearing, and appraising witnesses, and that interference is justified where there has been a misdirection, an irregularity, or where the findings are shown on the record to be patently wrong. In this respect the court referred to authorities including R v Dhlumayo and Another and S v Francis, and reiterated that while appellate restraint is required, the court of appeal must meaningfully examine the record so that the right of appeal is not rendered illusory.

Against that framework, the appeal court evaluated the trial court’s treatment of Mr Nyama as a single witness. The trial court had expressly recognised the cautionary rule and concluded that Mr Nyama’s evidence was “clear and satisfactory in all material respects,” that any contradictions were “minor,” and that the risk of mistaken identification was absent given that the witness and the appellant knew each other and there was sufficient light.

The appeal court disagreed with the trial court’s characterisation of the contradictions as minor. It reasoned that the witness’s evidence, as reflected in the record, moved between several materially different versions of the event, ranging from merely seeing the appellant standing near the person on the ground, to seeing a “fight,” to seeing the appellant “stabbing.” The appeal court considered these discrepancies to be material because they bore directly on whether the witness’s observations established the crucial conduct said to constitute murder. The appeal court noted that even the prosecutor had found the witness’s account confusing, and that the witness’s police statement contained admissions that he did not see the fight because the person was already on the ground when he arrived, which complicated the later account suggesting stabbing.

The appeal court further considered the lack of corroboration significant. It emphasised that no other witnesses corroborated the witness’s version and that other identified witnesses were not called, with the result that the State’s case depended essentially on a single, materially inconsistent account. In addition, the appeal court stated that it is not legally expected of an accused to furnish a “good reason” why a State witness would falsely implicate him, and treated the trial court’s adverse approach to the appellant’s inability to explain the alleged false implication as inappropriate in assessing whether the State had discharged its burden.

On circumstantial proof, the appeal court accepted that the trial court had correctly referred to the principles for inferential reasoning as set out in R v Blom. However, it held that the inferential conclusion of guilt reached by the trial court depended on the premise that the single witness was reliable and credible in the relevant respects. Since the appeal court found that the witness’s contradictions were material and undermined reliability, it held that the factual foundation for drawing the inference that the appellant stabbed the deceased was insufficient to sustain proof beyond reasonable doubt.

In consequence, the appeal court concluded that the conviction could not stand, and that the sentence, being dependent upon the conviction, likewise had to be set aside.

5. Outcome and Relief

The appeal against conviction was upheld. The High Court set aside both the conviction and the sentence. The judgment did not record a separate order as to costs.

Cases Cited

R v Dhlumayo and Another 1948 (2) SA 677 (AD)

Director of Public Prosecutions, Gauteng v Pistorius 2016 (2) SA 317 (SCA)

S v Francis 1991 (2) SACR 198 (A)

S v Hadebe 1979 (2) SA (citation referred to in the judgment at 654 e–f)

Elliot Mnguni v The State (Case no A7173/2020, judgment delivered on 29 November 2021) (unreported, Free State Division)

S v M 2006 (1) SACR 135 (SCA)

S v Trainor 2003 (1) SACR 35 (SCA)

R v Blom 1939 AD 188

Legislation Cited

Criminal Law Amendment Act 105 of 1997, section 51(2)

Criminal Procedure Act 51 of 1977, section 217

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the trial court’s conclusion that the evidence of the single witness met the required standard was not sustainable on the record. The contradictions in the witness’s account were considered material and adversely affected credibility and reliability on the core issue of what was observed. In the absence of corroboration and with the State’s case effectively reduced to that single inconsistent account, the State did not prove guilt beyond reasonable doubt. The conviction and sentence were therefore set aside.

LEGAL PRINCIPLES

The judgment applied the principle that an appellate court will generally defer to the trial court’s findings of fact and credibility because of the trial court’s advantage in observing witnesses, but that it may interfere where the findings are affected by misdirection, irregularity, or are shown by the record to be patently wrong.

The judgment applied the cautionary approach to single-witness evidence, accepting that a conviction may follow on such evidence only if it is clear and satisfactory in all material respects, and emphasising that material contradictions may undermine the reliability required to meet the criminal standard of proof.

The judgment applied the rules governing circumstantial evidence and inferential reasoning as stated in R v Blom, and treated the permissibility of drawing an inference of guilt as dependent on the reliability of the underlying factual findings.

The judgment reiterated that an accused bears no burden to prove innocence or to provide a persuasive explanation for why a State witness would falsely implicate him; the determinative question remains whether the State has proved guilt beyond reasonable doubt on reliable evidence.