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[2011] ZASCA 230
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Karrim v S (480/2008) [2011] ZASCA 230 (30 November 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 480/2008
In the matter between:
ROOKSANA KARRIM
…....................................................................................
Appellant
and
THE STATE
…................................................................................................
Respondent
Neutral citation:
Rooksana Karrim v The State
(480/2008)
[2011] ZASCA 230
(30
November 2011)
Coram:
CLOETE,
SNYDERS JJA and PETSE AJA
Heard:
4 November
2011
Delivered:
30
November 2011
Summary:
Appeal –
against conviction – weight to be given to further evidence by
witness recanting earlier evidence – further
evidence held to
be lacking credence.
_____________________________________________________________________
ORDER
_____________________________________________________________________
On appeal from:
North Gauteng High Court
(Southwood J, Poswa J and Fabricius AJ, sitting as a court of
appeal):
The appeal is dismissed.
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
PETSE AJA (CLOETE and
SNYDERS JJA CONCURRING):
Introduction
[1] This matter has had a
long and somewhat unfortunate history in traversing what appears to
have been a tortuous road to this
court .
[2] On 5 June 2002 the
appellant, Ms Rooksana Karrim, was convicted in the Circuit Local
Division of the Eastern Circuit District
of the North Gauteng High
Court sitting at Piet Retief of the murder of her mother in-law,
Ayesha Fazel-Ellah (the deceased).
[3] The trial judge found
that there were no ‘substantial and compelling circumstances’
present within the contemplation
of
s 51(3)
of the
Criminal Law
Amendment Act 105 of 1997
. That being the position – and
apparently in the light of the decisions of this court,
especially
S v Malgas
2001 (2) SA 1222
(SCA) – the appellant was sentenced to
life imprisonment.
[4] Aggrieved by her
conviction the appellant unsuccessfully applied for leave to appeal
against her conviction
and sentence. Undeterred, the appellant then sought and obtained
leave to appeal from this court which was
granted to the Full Court
on 24 October 2002.
Moreover and pursuant to
her petition to this court, the appellant was simultaneously granted
leave to apply to the Full Court to
lead further evidence.
[5] On 11 June 2003 the
Full Court, after hearing argument, postponed the appeal sine die and
granted the appellant leave to call
four witnesses in her defence and
to recall all the witnesses who had testified for the State at the
trial. The appellant was also
granted leave to testify once more in
her defence, if so advised.
[6] At the conclusion of
the adduction of the further evidence and after hearing argument the
trial judge referred the appeal back
to the Full Court for it to
determine the question whether the conviction of the appellant was,
on all the evidence, supportable
or not.
[7] Ultimately the appeal
served before the Full Court again – albeit differently
constituted – which came to the conclusion
that the appellant
had been correctly convicted by the trial court. Consequently the
appeal was dismissed on 11 December 2007.
Again on 18 April 2008 this
court granted the appellant special leave to appeal.
[8] On 19 May 2009, this
being the date on which the appeal was scheduled to be heard in this
court, this court postponed the appeal
sine die because it granted
the appellant, on her application, a further opportunity to lead
further evidence by remitting the
matter to the trial court for the
hearing of the evidence of Ms Patricia Dube, who had testified at the
appellant’s trial
in June 2001 and again in October 2003 and to
‘call such further evidence as either party may be entitled to
call in consequence
of Ms Dube’s evidence’. The State was
granted leave to cross-examine Ms Dube. The trial court was
furthermore requested
to ‘favour this court with [its]
credibility findings in respect of the further evidence’. This
court further directed
that after the hearing of all the (new)
evidence the matter should be re-instated in this court for the
appeal to be heard.
[9] The appellant’s
application to lead further evidence by Ms Dube was solely predicated
on the fact that Ms Dube was prepared
to give evidence that she had
lied in
her previous testimony
against the appellant. It was claimed that according to Dube the
truth of the matter was that she was induced
by threats and promises
made by the investigating officer, Inspector Khaba, to falsely
implicate the appellant in the murder of
the deceased.
[10] Being satisfied that
the appellant’s application to lead further evidence satisfied
the prerequisites for the adduction
of further evidence, this court
made the order mentioned in para 8 above. See:
S v EB
2010 (2)
SACR 524
(SCA) and the cases referred to therein.
The background
[11] The conviction of
the appellant was a sequel to an incident that occurred in the
deceased’s home on 1 August 2000 which
resulted in the death of
the deceased.
[12] The appellant was
initially indicted, as accused 3, together with three other persons,
namely Thembi Patricia Dube (accused
1); Sibusiso Nonsana Mavuso
(accused 2) and Mandla Doctor Mavuso (accused 4) on a charge of
murder.
[13] Only Dube pleaded
guilty to the charge, was convicted on her plea and sentenced to
imprisonment for life. Mandla Doctor Mavuso
escaped from police
custody and apparently remains at large. The case of the appellant
and Sibusiso Nonsana Mavuso was postponed
for trial before a
different judge.
[14] On 3 June 2002 the
appellant appeared before De Vos J in the Circuit Local Division of
the Eastern Circuit District of the
North Gauteng High Court as the
only remaining accused following the withdrawal of the charge against
Sibusiso Mavuso before the
commencement of the trial. Mavuso
subsequently became one of the State witnesses against the appellant.
The allegation against
the appellant – which she denied –
was that she had, in essence, arranged the murder of the deceased by
engaging her
erstwhile co-accused to commit the deed.
[15] Inspector Zeeman
testified that pursuant to a report that he received after the
murder had occurred he
proceeded to the crime scene at the deceased’s home where he
found approximately 30 people both outside
and inside the premises.
Upon arrival he was met by Mr Faizel Ellahi who accompanied him to
the last room in the house where he
was shown the body of the
deceased lying on the floor. He looked at the corpse and observed
that there was a deep mark around the
neck. Zeeman confirmed that he
found the body in the position depicted in photographs 3 and 4
contained in exhibit C. There was
a duvet lying on the floor next to
the body. Zeeman testified that upon seeing the body he gained the
impression that the deceased’s
neck was tied with the piece of
string that was by then lying next to the body.
[16] Zeeman further
testified that he found the appellant, who appeared to be in a state
of shock, seated on a bed in another room.
Upon speaking to the
appellant the latter told him that whilst she was in her room with
her six month old baby she heard the deceased
screaming. Thereafter
two unknown black men came into her room and tied her feet with the
cord of an electric blanket. Under cross-examination
he said that Mr
Gangat told him that the deceased’s body was covered by a duvet
and a blanket when he arrived.
[17] Mr Ferhaad Gangat
testified on behalf of the State. He told the trial court that on the
morning of 1 August 2000 at approximately
07h30 his wife informed him
that she had received a telephone call from the appellant urging her
to come over immediately as something
had happened to the deceased.
He, together with his wife, rushed to the deceased’s house
where, on arrival, they were met
by the appellant at the front door.
Upon entering the house he and his wife began to look for the
deceased. They called out her
name to no avail. As they approached
the deceased’s room they saw a duvet and blankets strewn on the
floor. He picked up
the duvet and blankets and saw the body of the
deceased lying on the floor. He again shouted her name ‘to try
and wake her
up’ but there was no response.
[18] They called for help
whereafter Dr Ghani came to the house. When the deceased’s
neck was lifted he
observed that the deceased had been strangled with a shoe lace. After
the string around the deceased’s
neck was removed by Doctor
Ghani he certified her
dead. Gangat confirmed
that photographs 3 and 4 in exhibit C depicted the body of the
deceased in the position in which he found
it when he removed the
duvet and blanket that covered her – that is lying on her back
with both arms folded on her chest.
Gangat confirmed that all of this
time the appellant was in her bedroom. He further stated that the
position in which the deceased’s
body was on the floor –
sprawled across the doorway – rendered the entry into and
egress from the deceased’s
bedroom to reach the telephone
therein without stepping on the body virtually impossible.
[19] Under
cross-examination Gangat testified that he removed the duvet and
blankets so that he could enter the deceased’s
bedroom. He
further stated that although he shook the deceased to ascertain if
she was alive or not, the body was not moved from
its original
position.
[20] Ms Thembi Patricia
Dube (Dube) was the third witness called by the State. She testified
that in July 2000 she was employed
by Gangat. Occasionally she would
also assist the deceased and the appellant in their household chores.
She stated that in July
2000 she was approached by the appellant who
requested her to arrange people to kill the deceased. She was also
informed by the
appellant that she would receive R500 for her
assistance. As she knew of no one who could undertake the task she in
turn approached
an acquaintance, Lindiwe and informed her of the
appellant’s request. Lindiwe then approached two brothers
Mandla and Sibusiso
Mavuso who confirmed that they would be able to
execute the plan to kill the deceased.
[21] The next day Dube
met with the two brothers who once more confirmed their availability.
She explained to them what the plan
entailed and that they would be
paid R30 000 for their services. Afterwards she reported to the
appellant that two men had been
found to kill the deceased. The
appellant, in turn, said that they must come to the deceased’s
house the following day.
[22] On 1 August 2000
Lindiwe arrived at Dube’s place of employment and told Dube
that the Mavuso brothers were waiting for
her in the street. Dube
went to meet them and then accompanied them to the deceased’s
house. Upon their arrival she knocked
on the kitchen door and, in
keeping with their arrangement, the appellant opened the door for
them. After speaking to the Mavuso
brothers in the kitchen –
telling them to kill the deceased for which they would be paid –
the appellant showed them
the deceased’s bedroom. The appellant
then told Dube to leave and return to her place of work.
[23] Dube further
testified that she subsequently learnt that the deceased had died.
She also said that the appellant did not pay
her the R500 she had
promised. She was arrested on 23 March 2001 and charged with murder.
Under cross-examination she stated that
she did not ask the appellant
to pay her the R500 she was promised because the appellant left some
three days after the murder.
When taxed on this she said that
whenever she spoke to the appellant about payment the latter would
say that she would pay her
once she got the money. She further stated
that she made her statement to the police freely and voluntarily. She
also denied that
she was present in the deceased’s bedroom when
the latter was accosted and killed. She reiterated that what she was
telling
the court was the truth.
[24] Mr Sibusiso Mavuso
(Sibusiso) was the fourth witness called by the State. As he was an
accomplice he was warned in terms of
s 204
of the
Criminal Procedure
Act 51 of 1977
. He testified that he and his brother Mandla were
introduced to Dube who, in turn, informed them that the appellant
needed someone
to kill the deceased. After Dube told Mandla how much
they would be paid to execute the plan they agreed that they were
available.
[25] The next day they
returned to Dube who then escorted them to the deceased’s home.
Upon entering through the kitchen door
they saw the appellant
carrying a baby. The appellant gestured to Mandla who then went in
the direction of the deceased’s
bedroom with Sibusiso following
behind. Sibusiso further testified that when they entered the bedroom
Mandla grabbed the deceased
and requested him to look for a firearm.
Unable
to find one Mandla then
strangled the deceased with a shoe string which he tied around the
deceased’s neck. The deceased dropped
to the floor at the
appellant’s feet. As they left the scene, the appellant
suggested to Mandla that he take a video recording
machine with him
so as to make it appear that there had been a robbery. They left the
deceased sprawled across the floor with her
head in the bedroom
whilst her legs were in the passage.
[26] Sibusiso further
stated that the body was not covered by a duvet and blankets which
were still on the bed as they left. At
no stage, he said, did they
tie the appellant’s legs together. On the contrary the
appellant was not harmed in any way as
she ‘never said that she
should be killed’, but that ‘the old lady should be
killed’. Sibusiso confirmed
that
the appellant was present
when the deceased was murdered and observed the events as
they unfolded.
[27] Under
cross-examination Sibusiso said that he saw Dube standing inside in
the house when the deceased was murdered by Mandla.
He further denied
that he was personally involved in the arrangement to kill the
deceased. He confirmed that the statements he
made to the police and
the magistrate were made freely and voluntarily. He further denied
that he was guilty of murder saying that
he was not hired to kill
anyone and that the guilty ones were the appellant, Dube and his
brother Mandla. He also denied that when
he went to the deceased’s
house with Dube and Mandla he was aware that the plan was to kill the
deceased. He said he went
along because Mandla had told him that he
had found gardening work for him there. Sibusiso further testified
that he stole the
few items because he feared that if he stood by
doing nothing Mandla might also kill him. He denied that the plan was
to rob the
deceased nor that they were wearing balaclavas or any type
of hat concealing portions of their faces.
[28] The investigating
officer, Inspector Khaba, testified that after he arrested Dube and
Sibusiso he took them to the police station
in separate vehicles. The
next day he interviewed them separately and realised that they were
both co-operative. For this reason
he took them to a magistrate on
the following day where each separately made a
statement. Under
cross-examination he denied that Dube and Sibusiso were at any stage
left alone together at the police station.
He further testified that
when he saw the appellant at the deceased’s house a few days
after the murder he deduced, from
her emotional state, that she was
distraught. He denied that Dube was at any stage promised a reduction
in her sentence or any
kind of reprieve if she testified against the
appellant.
[29] The appellant
testified in her defence. Her version was that on the day of the
murder she was in bed in her bedroom with her
baby when she heard the
deceased screaming. As she was about to rise from the bed to
investigate, Sibusiso and an unknown man entered
her bedroom.
Sibusiso pushed her back onto the bed and tied her legs together
around the ankles with an electric cord whilst the
other man
ransacked the room. A third person standing in the passage spoke to
her assailants who then hastily went out. When it
was quiet she
untied herself and went to the deceased’s bedroom. The
deceased’s bedding, including a duvet, was strewn
on the floor.
She called out to the deceased but there was no response. She
testified that she telephoned her husband’s cousin
but could
not recall who she spoke to. At this stage she was not aware that the
deceased was dead in her bedroom under the duvet
and blankets. When
she saw Gangat’s vehicle approaching she went outside to meet
him, his wife, mother and someone whose
identity she could not
recall. When she was asked as to what had happened she responded that
someone had stolen her radio. Gangat
then went to the deceased’s
bedroom and the next thing she heard was Gangat saying that ‘mommy
is lying on the floor’.
She went on to say that after Gangat
had removed the duvet covering the deceased, he felt her pulse and
then said that she was
dead.
[30] The appellant denied
that she ever requested Dube to arrange people to kill the deceased
saying that she could never have done
so as she and the deceased had
a healthy relationship. Moreover, she said that as she was
unemployed, she could not afford to pay
R30 000 to the killers as
testified to by Dube. She also denied the evidence of Sibusiso in
relation to the incident that culminated
in the death of the
deceased.
[31] In the event the
trial court accepted the version of the State, rejected that of the
appellant and consequently convicted her
as charged.
Further evidence
pursuant to the order by the Full Court
[32] I now turn to deal
with the evidence of the three new witnesses whom the appellant was
granted leave to call, namely: Ms Elma
Swart, Mr Mohamed Rashid Khan,
Mr Mohamed Hallen Ameer together with that of the witnesses who had
previously testified at her
trial.
[33] Ms Elma Swart
(Swart) who worked as an Assessor for Assessco Claim Assessors
testified that she was the person who investigated
the claim lodged
by the appellant’s former husband in respect of the goods
stolen from the deceased’s home on 1 August
2000. To that end
she interviewed both the appellant and her former husband. She was
informed that on the day of the incident the
deceased was in the
kitchen when she was accosted by intruders. Upon hearing her scream
the appellant tried to go to the deceased
in the kitchen but was
confronted by two intruders who tied her up and inserted a cloth into
her mouth. Swart also prepared a list
of the stolen goods which, in
her view, could not have been removed only by three men unless loaded
on a vehicle. She further testified
that she was pretty sure that she
read the statement made by the deceased’s son to the
investigation officer – which
amongst others – stated
that the body of the deceased was found in the kitchen. Swart further
testified that she was told
that Gangat had decided, on
his way to work, to visit
the deceased. When Gangat knocked on the front door there was no
response. He went around to the back
door where he saw the deceased’s
body lying on the kitchen floor. Swart was told by the appellant that
the deceased might
have opened the door for the intruders, believing
that it was her helper knocking on the door. Under cross-examination
Swart confirmed
that she never spoke to Gangat in relation to the
information contained in her report. She further reiterated that she
obtained
the information she recorded from her interview with the
appellant and her former husband. She also stated that if she had
been
specifically told that the appellant was tied up with an
electric cord she would have recorded this in her notes.
[34] The second witness
called, Mr Mohammed Hassim Ameer (Ameer), testified that on the day
of the murder he was in Piet Retief.
The deceased was his
sister-in-law. By the
time he arrived at the
deceased’s home there was a group of people present. Upon
reaching the body of the deceased he stooped
over it and observed
that she was strangled with a cord. He asked for a knife but did not
have the courage to cut the cord. At
that stage his son-in-law
arrived and cut the cord – which appeared to be a shoe lace –
with a pair of scissors. Ameer
confirmed that, on the information he
received, Gangat was the first person who arrived at the deceased’s
home after the
murder.
[35] Mr Mohammed Rashid
Khan (Khan), the third of the new witnesses, testified that he was
told that there was something amiss at
the deceased’s house. He
proceeded to the deceased’s house and found, amongst others,
his father in-law, Ameer kneeling
next to the deceased holding a
knife. Gangat was also present, albeit in the passage. Ameer was
experiencing difficulty in removing
the cord tied around the
deceased’s neck. Khan confirmed that as far as he knew the
relations between the appellant and the
deceased were not cordial.
[36] Mr Gangat was
recalled by the State and the thrust of his evidence was that he at
no stage spoke to Swart when the latter was
interviewing the
appellant and her former husband. He also reiterated his earlier
evidence that when he arrived at the deceased’s
home and found
the body of the deceased on the floor of her bedroom the appellant
was not present but in her own bedroom. Under
cross-examination he
reiterated the main thrust of his earlier evidence that he did not
move the body of the deceased from where
he had found it, other than
tapping it on the shoulder and calling out her name. He also
confirmed that Dube was at all material
times employed by him. He
confirmed that he did not find the body of the deceased on the
kitchen floor on his arrival. It was put
to Gangat, under
cross-examination, that the reason why the appellant did not see the
body of the deceased in the bedroom when
she went to make a call
there, was because it could have been lying in the kitchen at that
stage. His response was that he bore
no knowledge of that. He was
also adamant that he found the deceased’s body lying on the
floor with her hands neatly folded
on her chest thus showing no signs
of any earlier struggle.
[37] Mr Shiraz Mohammed
Elayi (Elayi) – the appellant’s former husband –
testified. He
was not at home when the
incident occurred – as he had already left for work. On
returning home he saw the deceased’s
body in the latter’s
bedroom. He confirmed that he lodged a claim for missing goods and
that Swart came to interview him
in regard thereto. He denied that he
told Swart that on returning home he found the deceased’s body
in the kitchen and that
Gangat came there on his own visiting the
deceased before he went to
work. He confirmed that
the appellant also spoke to Swart. He testified that the relationship
between the appellant and the deceased
was strained as the appellant
hated
the deceased. Under
cross-examination he confirmed that in his claim for stolen goods he
also claimed a sum of R10
000. He also denied that it was the deceased who opened the back door
for him when he left in the morning
saying that he always used the
front door when he went to work.
[38] The investigating
officer, Inspector Khaba, was also recalled. He likewise confirmed
the main thrust of his earlier evidence
and the content of his
interview with the appellant on the day after the incident. The
appellant could not tell him how the assailants
gained entry into the
house. He did, however, confirm that as his investigation continued
he received information that the perpetrators
gained entry into the
house through the back door that had deliberately been left unlocked
by the appellant. As to the goods stolen
from the deceased, he only
recovered a video recording machine that Mandla Mavuso admitted to
have stolen from the deceased’s
house which he retrieved from a
third party. He reiterated that the information he received in the
course of his investigation
led to the arrest of Dube and the two
Mavuso brothers who all confessed their complicity in the commission
of the murder. He further
said that from his investigation it was
evident that murder was the primary objective of the perpetrators and
not robbery.
[39] When Dube was
recalled in October 2003 she, once more, reiterated her earlier
evidence that she was
approached by the appellant to procure people to kill the deceased.
To that end she spoke to Lindiwe who,
in turn, arranged the two
Mavuso brothers to undertake the task. Pressed on why she never asked
the appellant for payment of the
amount that she had
promised to pay her, Dube gave conflicting answers. She, in one
breath, said that the
appellant left the area three days after the murder. On the other
hand,
she said that whenever
she asked the appellant to pay, the latter said she had no money and
would pay once she had the money. Dube
sought to explain this
discrepancy by saying that she could not clearly recall how long
after the murder the appellant left the
deceased’s house. She
confirmed that she met the killers a week after the murder when they
came to enquire about their reward
as they also had not yet been
paid. Of importance is that Dube was adamant that she had told the
truth when she testified earlier
that the appellant had approached
her to find killers and that she escorted the killers to the
deceased’s house as previously
arranged with the appellant. She
further confirmed that it was the appellant herself who opened the
kitchen door to let the killers
in. She went on to say that she had
applied for leave to appeal against the sentence imposed on her as
she was not ‘the initiator
of the whole process’. She,
however, disputed the suggestion put to her that her sole objective
in testifying against the
appellant was to secure a lighter sentence
for herself. She was adamant that ‘she wanted to tell the court
what had happened’.
Under re-examination she confirmed that
when she appeared in the magistrates’ court on 25 October 2001
she pleaded guilty
in terms of
s 119
of the
Criminal Procedure Act 51
of 1977
and made a written plea explanation in terms of which she
admitted that she was approached by the appellant to procure someone
to kill the deceased.
[40] The aforegoing
concluded the further evidence at the re-hearing. Thereafter the
trial court delivered a judgment in terms of
which it held that it
was not open to it to revisit its earlier verdict in the light of the
new evidence. It thus concluded that
it was up to the Full Court to
decide whether the conviction of the appellant was sustainable on the
evidence adduced both at the
initial trial and at the hearing of
further evidence.
[41] What is remarkable
about the additional evidence is that it introduced nothing of
substance that had not already been dealt
with, but for the evidence
of Swart, which was in effect damaging to the appellant’s case.
[42] In due course the
appeal served before the Full Court (Southwood J with Poswa J et
Fabricius AJ concurring) which dismissed
the appeal.
[43] Thereafter the
appellant was granted special leave to appeal to this court. Her
appeal was initially scheduled for hearing
in this court on 19 May
2009. Some few days before the hearing of the appeal the appellant
filed an application for leave to adduce
further evidence. This
application was predicated on two affidavits obtained from Dube in
Westville Prison in December 2008. In
these affidavits Dube recanted
her earlier evidence tendered in June 2002 and October 2003 and
asserted that she had perjured herself
on both occasions. She
asserted that she was at no stage approached by the appellant as
previously testified to by her. She went
on to state that she had a
change of heart when she was diagnosed as HIV positive and desired to
clear her conscience before she
died by telling the truth, which was
that the appellant was innocent of any wrongdoing.
[44] Consequently this
court postponed the appeal on 19 May 2009 and remitted the matter to
the trial court for the hearing of the
evidence of Dube and such
further evidence as either party might desire to call as a result of
Dube’s evidence. The trial
court was requested, upon hearing
further evidence, to furnish this court with its credibility findings
in
respect of the further
evidence adduced.
Further evidence
pursuant to the order granted on 19 May 2009
[45] The record of the
further evidence adduced pursuant to the foregoing order is now
before this court as are the credibility
findings of the trial court.
[46] It will be useful to
set out briefly the further evidence adduced pursuant to the order of
this court issued on 19 May 2009.
Following Dube’s evidence
three other witnesses testified, namely Khan and Mr Rayith Budai
Singh (Singh) – both called
at the instance of the appellant –
and Khaba re-called by the State.
[47] In essence Dube
confirmed: (a) that she previously testified on behalf of the State
against the appellant; (b) that she implicated
the appellant in the
murder of the deceased as the initiator of the whole criminal scheme;
(c) that on her arrest she was interrogated
in the presence of
Sibusiso Mavuso; and (d) that she was assaulted by Khaba who told her
that their plan was not to rob the deceased
but to kill her at the
behest of the appellant.
Fearing that she would be
subjected to further assault she accepted what Khaba dictated to her.
When her brother visited her in
police custody she told him what she
had actually planned to do (namely robbery), but added that when
Khaba would not accept this
she
agreed to make a
statement in the terms dictated to her by Khaba which implicated the
appellant. Her brother advised her to adhere
to the content of that
statement and not to deviate from it for, if she were to do so, she
would cause more trouble for herself.
She denied that the appellant
ever requested her to procure people to kill the deceased. She went
on to say that Khaba told her,
during his regular visits to her, that
she would not be sentenced but would be released if she co-operated.
On her appearance in
the Piet Retief Magistrates’ Court on 25
October 2001, she pleaded guilty to murder because she feared
that if she told the
truth Khaba would assault her further, despite the fact that she was
at that stage legally represented by Mr
Stander. Although she told
her legal representative the truth she was advised that as she had
already made a statement admitting
to murder
her legal representative
would ensure that she was not sentenced to more than fifteen
years imprisonment. She
perpetuated the same lie when she appeared in the high court. Her
counsel in the high court explained the
full implications of her plea
explanation to her and enquired if she still adhered to such
explanation, which she confirmed.
[48] Dube testified that
her sole objective was to commit robbery to augment her meagre salary
as she had two children to maintain
whose father was deceased. She
said that she gave false evidence against the appellant because she
was merely repeating what Khaba
had told her and hoping that she
would be sentenced leniently. She said that now that she was HIV
positive it pained her to see
the appellant suffering for something
she never did. She also testified that in December, whilst in prison,
she was visited twice
by two gentlemen who obtained statements from
her, one on 8 December and the other on 21 December 2008.
[49] Dube denied that she
was paid money by the family of the deceased to recant her earlier
evidence. She denied further that she
ever saw the appellant on the
day of the murder. She nevertheless said that she expected that the
appellant would be present in
the house when she escorted the Mavuso
brothers there but not the appellant’s husband
who would have left for
work by then. Under cross-examination Dube accepted that no mention
was made in her statement of 4 December
2008 that she was assaulted
by Khaba although she persisted in saying that she had mentioned that
to the attorney who recorded
the statement. Her claim that she was
promised a lenient sentence was also not mentioned. Neither did her
statement taken on 23
December 2008 mention either of these two
occurrences. Her explanation for this glaring omission was twofold:
(a) that those who
took her statement had
promised to come back again; and (b) that she had forgotten about
these occurrences. She conceded that the
reason furnished in her
statement for the recantation of her earlier evidence was that in
court she gave evidence against the appellant
because she was scared
and said ‘whatever came within [her] mind’.
[50] Dube conceded that
she only mentioned for the first time on 30 April 2009 that she was
assaulted by Khaba on 24 March 2001.
She said that it would not have
served any purpose to mention this after she had already been
sentenced. Nor did anyone ever ask
her about that. She could not
proffer any cogent reason why she failed to mention the assault when
she testified against the appellant
– not just once, but twice
– for at that stage she accepted that Khaba could no longer
assault her. Her implausible
response was that she was neither asked
about him nor afforded an opportunity to write her own statement as
to what had happened.
Neither does her assertion that her prison
inmates inspired her to speak out and tell the truth explain why it
took her two years
to do so and even then only after three visits to
her. On re-examination Dube said that she pleaded guilty to murder
because she
was accepting responsibility for what her cohorts did in
that they murdered the deceased when the plan was merely to rob her.
She
further said that her cohorts wore hats that concealed their
faces.
[51] Khan, the
appellant’s brother-in-law, also testified. The tenor of his
evidence was that after the appellant was sentenced
to life
imprisonment the appellant’s family commissioned a private
investigator, Mr Phillip Lemmer, to investigate the matter.
To that
end he and Lemmer visited Dube in prison in 2008 who was unwilling to
talk to them, save to say that the appellant was
not implicated in
the murder of the deceased. Later they
instructed an attorney in
Umzimto, Mr Essop, to obtain a statement from Dube. He was
accompanied by Mr Singh,
a police officer, whose role was merely to facilitate access to
Dube. A statement was
obtained from Dube which was faxed to Mr Jaffer, the appellant’s
attorney, who was not
entirely satisfied therewith. Consequently Essop obtained a second
statement from Dube. Khan testified that
the appellant’s family
embarked on this exercise because the appellant maintained that she
was innocent. Khan, himself an
attorney, was unable to give a
satisfactory answer to the question posed to him by counsel for the
State that in none of her two
statements did Dube mention that she
was assaulted by Khaba; that she was told by Khaba what to say and
that she was promised a
lenient sentence. He contented himself with
merely saying that he left it to Mr Jaffer and counsel to advise the
family on what
could and should be done under the circumstances.
[52] Singh’s
evidence was not of a material nature. He testified that as a member
of the South African Police Service he accompanied
Essop to Westville
Prison where Dube was incarcerated principally to facilitate Essop’s
access to Dube. He further said that
during these two visits Dube was
never asked if she was ever assaulted or why she pleaded guilty to
murder. Nor was she asked why
she had by then decided to recant her
earlier evidence implicating the appellant. However, he confirmed
under cross-examination
that Dube never mentioned that she was
assaulted or told what to say or promised a lenient sentence. He had
no independent recollection
of what Dube said during the two
interviews with them.
[53] Khaba was recalled
by the State. In his further evidence he reiterated his earlier
version. In particular he testified that:
(a) from the outset he was
investigating a case of
murder and not robbery;
(b) that upon her arrest Dube was co-operative; and (c) she was never
assaulted, told what to say or promised
a lenient sentence. He
confirmed that as a consequence of this co-operation she was taken to
a magistrate for a statement which,
in
the main, accorded with
her earlier testimony at the appellant’s trial and her plea
explanation in the magistrates’
court. Under cross-examination
Khaba was adamant that Dube was arrested for murder. Khaba was also
adamant that not only did Dube
incriminate herself in the murder, but
also implicated the appellant whom she said was the prime initiator
of the criminal scheme
to kill the deceased because, as she put it,
‘the old woman was ill-treating her’.
[54] At the conclusion of
the adduction of evidence the matter was adjourned. Counsel were
requested to file written heads of argument
given that the trial
court was directed by this court to furnish its credibility findings
in the light of the further evidence.
Trial court’s
credibility findings
[55] In formulating its
credibility findings the trial court also had regard to certain
documentary evidence tendered by agreement
between the State and the
defence. The most significant of those documents were two
hand-written affidavits made by Dube on 8
and 23 December 2008
respectively and a further affidavit deposed to on 30 April 2009 that
was filed in support of the application
to lead further evidence
launched in this court on 8 May 2009.
[56] The trial court
noted that when she testified for the third time on 4 May 2010, Dube
sought to recant her
earlier evidence tendered both in 2002 and 2003. The thrust of Dube’s
earlier evidence was that the appellant
solicited her assistance in
finding people to kill the deceased which she did. Dube testified
that she falsely implicated the appellant
in the murder because: (a)
Khaba had coerced her to do so; (b) the assault that she suffered at
the hands of Khaba had instilled
fear in her which drove her to plead
guilty to murder thus perpetuating a lie; (c) that if she adhered to
this lie she would receive
a lighter sentence; (d) her brother too
advised her not to deviate from the version dictated to her by Khaba;
and (e) her legal
representative, despite being told what the true
state of affairs was, also advised her to adopt Khaba’s version
of the events
in the expectation that she would not be sentenced to
more than fifteen years of imprisonment.
[57] Also, when Dube
appeared before Els J she pleaded guilty and in her written statement
under
s 112(2)
of the
Criminal Procedure Act adopted
the version that
incriminated her and implicated the appellant. She was consequently
convicted on her plea and sentenced to life
imprisonment.
[58] When she testified
against the appellant at the latter’s trial she was serving a
term
of life imprisonment.
Moreover the fear of further assault by Khaba was no longer a factor.
In the face of these
factors she still implicated the appellant, not just once at the
initial trial,
but again when she was
recalled to give further evidence for purposes of the appellant’s
appeal to the Full Court. On these
two occasions she was unequivocal
that the appellant was the mastermind behind the murder of the
deceased.
[59] The trial judge
found Dube to be an unimpressive and untruthful witness when she
testified in May 2010 and
sought to recant her earlier evidence which the trial court had found
satisfactory and reliable.
[60] On the question of
Dube’s demeanour the trial court said the following:
‘
The
demeanour of Miss Dube in the witness box did not inspire confidence
in the truth of her evidence. She refused to look at the
bench in
spite of the fact that she was asked questions from the bench. She
spoke very softly especially when giving answers to
difficult
questions, for instance when asked about the reasons for her original
plea of guilty in the High Court in front of Els
J she had to repeat
her answers so that they could be heard. She furthermore spoke about
emotional issues without any indication
of emotion either on her face
or in her voice as one would expect for example, describing her HIV
status, describing giving the
reason why she has decided to tell the
“
truth”
,
explaining how she was assaulted by Xaba and explaining why she
implicated the Appellant.’
[61] In summing up its
evaluation of Dube’s evidence – given in May 2010 –
in the light of inherent probabilities
the trial court found that:
(a) Dube’s evidence recanting her earlier evidence was
particularly lacking in detail in contrast
to the graphic details of
her earlier evidence; (b) the improbability of a person of Dube’s
intelligence pleading guilty
to murder if she was indeed innocent;
(c) the lack of any discernible motive that could be ascribed to
Khaba for falsely implicating
at least four persons in the deceased’s
murder, namely: Dube, appellant and the two Mavuso brothers; and (d)
corroboration
of Dube’s initial version by some objective
factors.
Discussion
[62] It will be
convenient to deal first with the further evidence adduced before the
trial
judge in May 2010. What
this court must determine is whether the further evidence led in
May 2010,
more particularly the evidence of Dube which was the basis for the
grant of the order made by this court on 19 May 2009,
is credible and
points to the evidence originally given by Dube as false. Following
this court’s decision in
R v Van Heerden
& another
1956 (1) SA 366
(A) at 372B,
Dube’s latest evidence cannot be merely accepted at its face
value to conclude that she perjured herself in
her earlier evidence
both at the trial and again when she reiterated her earlier evidence
in October 2003.
[63] In
Ladd
v Marshall
[1954] 3 ALL ER 745
at 748, a case
quoted with approval by Centlivres CJ in
R v
Van Heerden
, Denning LJ said that:
‘
A
confessed liar cannot usually be accepted as credible. To justify the
reception of the fresh evidence, some good reason must be
shown why a
lie was told in the first instance, and good ground given for
thinking the witness will tell the truth on the second
occasion’.
[64] Although these
remarks were made in the context of an application for a re-trial and
relied upon by this court in the context
of an application to lead
further evidence, it is my view that by parity of reasoning they
apply with equal force in this case
despite the fact that the
appellant had already been granted leave to lead further evidence
from Dube, following her recantation
of her earliest evidence given
not just once but twice. There is all the more reason in this case to
adopt a cautious approach
when considering Dube’s further
evidence given in May 2010 if regard is had to the fact that at her
own trial she, on two
occasions, gave plea explanations which in
substance accorded with her evidence at the appellant’s trial,
leaving aside for
a moment the influences that she claimed had a
bearing on those plea explanations.
[65] This
court must of course defer to the trial court’s credibility
findings more particularly given the care with which
they appear to
have been arrived at. This is particularly so having regard to the
advantages enjoyed by the trial court which was
steeped in the
atmosphere of the trial and had the opportunity of observing the
demeanour of the witnesses. See
Rex v Dhlumayo
& another
1948 (2) SA 677
(A). There is
nothing to suggest, from a reading of the record, that such findings
do not accord with the wider probabilities of
the case. Compare
Medscheme Holdings (Pty) Ltd & another
Bhamjee
2005 (5) SA 339
(SCA) para 14.
[66] The trial court
found that the evidence given by Dube in May 2010 could not be
accepted as credible. It gave comprehensive
reasons for reaching that
conclusion. To my mind that finding cannot be faulted. A few examples
will illustrate this point. It
took Dube almost eight years to tell
what she then claimed was the truth when she made her two statements
to Mr Essop on 4 and
23 December 2008 respectively. In neither of
these two statements is it recorded that Khaba had assaulted her,
told her what to
say in her statement and promised her a lenient
sentence. Had she mentioned those reasons to Mr Essop it is
inconceivable that
Mr Essop would have omitted to record such crucial
information in her statements.
[67] As to the claim that
she feared that Khaba would assault her if she deviated from what he
allegedly told her to say, it is
difficult to understand why she told
the version she gave at the appellant’s trial not just once,
but twice at a stage when
Khaba no longer had
access to her as she was
no longer in police custody. When she testified against the
appellant she had already
been sentenced to life imprisonment. Thus it must have been plain to
her by then that the promise of a
lenient sentence was no longer
feasible and yet she persisted in her earlier version, again not just
once but twice. On each of
these two instances she confidently
testified that she was telling the truth and that the appellant’s
denials of what she
said were untruthful. It was, however, contended
on the appellant’s behalf that the defence was not informed of
the observations
of the trial judge and thus could not comment on the
aspects mentioned by the trial judge in her credibility findings. In
my view
this argument is unavailing. It was a specific request to the
trial court ‘to favour this court with her credibility
findings’
in respect of the further evidence. The trial court
pertinently drew counsel’s attention to this request and gave
them the
opportunity to argue and file written heads of argument.
Demeanour was therefore relevant. The trial judge was not obliged to
put
her impressions to counsel. In any event it was not suggested
that the trial court’s credibility findings were wrong or not
justified.
[68] Counsel for the
appellant advanced an alternative argument in this court the upshot
of which was that in the event that the
evidence of Dube is not
accepted, there was still no evidence of sufficient weight against
the appellant to sustain her conviction.
[69] To a great measure
the State relied on the evidence of Dube and Sibusiso in its case
against the appellant in addition to the
evidence of Zeeman, Khaba
and Gangat.
Evidence of an
accomplice
[70] It is
again plain from a reading of the record that both Dube and Sibusiso
were accomplices hence Sibusiso, against whom the
charge was
withdrawn before the commencement of trial, was warned by the trial
court in terms of
s 204
of the
Criminal Procedure Act 51 of 1977
.
Thus their evidence should be approached with caution for a variety
of reasons. The cautionary rule to be applied to accomplices
was
described in these terms by Holmes JA in
S v
Hlapezula & others
1965 (4) SA 439
(A) at
440D–H:
‘
It
is well settled that the testimony of an accomplice requires
particular scrutiny because of the
cumulative
effect of the following factors. First, he is a self-confessed
criminal. Second, various considerations may lead him
falsely to
implicate the accused, for example, a desire to shield a
culprit
or, particularly where he has not been sentenced, the hope of
clemency. Third, by reason of his inside knowledge, he has
a
deceptive facility for convincing description – his only
fiction being the substitution of the accused for the culprit.
Accordingly, even where
sec. 257
of the Code has been satisfied,
there has grown up a cautionary rule of practice requiring (a)
recognition by the trial Court of
the foregoing dangers, and (b) the
safeguard of some factor reducing the risk of a wrong conviction,
such as corroboration implicating
the accused in the commission of
the offence, or the absence of gainsaying evidence from him, or his
mendacity as a witness, or
the implication by the accomplice of
someone near and dear to him; see in particular
R
v Ncanana,
1948 (4)
SA 399
(AD) at pp. 405-6;
R
v Gumede,
1949 (3) SA
749
(AD) at p. 758;
R
v Nqamtweni & another
1959
(1) SA 894
(AD) at pp 897G-898D. Satisfaction of the cautionary rule
does not necessarily warrant a conviction, for the ultimate
requirement
is proof beyond reasonable doubt, and this depends upon
appraisal of all the evidence and the degree of the safeguard
aforementioned.’
[71]
Although the evidence of Sibusiso is not without blemishes, as he
sought to minimise his role in the murder, it corroborates
in some
material respects Dube’s evidence. As to the proposition that
the evidence of an accomplice can provide corroboration,
see
S
v Avon Bottle Store (Pty) Ltd & others
1963
(2) SA 389
(A) at 393H;
S v
Hlapezula & others
at 440H. As to Dube’s
original evidence it is evident that she implicated the appellant in
the murder. Dube had no motive
to falsely implicate the
appellant and none was
suggested either in this court or the trial court. Dube was, for
example, asked by the trial court when she
testified in May 2010 what
the appellant did to her that made her give false evidence against
the appellant. Her unequivocal answer
was that the appellant had done
nothing wrong to her. What makes it even more difficult, in my view,
to understand why Dube would
have fabricated evidence implicating the
appellant, is the telling factor that Dube was clearly conscious that
her version was
also self-incriminating.
[72] However, there is
yet a further crucial safeguard reducing the risk of a wrong
conviction consisting of the fact that the appellant’s
evidence
as to what happened on the day of the murder falls to be rejected.
She was patently a mendacious witness. Thus the corroboration
of
Dube’s evidence in some respects by Sibusiso renders the
appellant’s version even less probable. See
S v Gentle
2005
(1) SACR 420
(SCA) at 430j–431a. The appellant’s case is
riddled with a number of improbable features. Highlighting some of
those
would, in my view, be sufficient to illustrate the manifest
implausibility of her version.
The appellant testified
that she realised that there was a problem in the house when she
heard the deceased scream. But after the
intruders had left she was
content – when the deceased did not respond when she called her
– to leave matters at that
believing, as she said, that she was
fine wherever she was. After some vacillation she eventually conceded
under cross-examination
that when she went to and from the telephone
in the deceased’s bedroom she could not have failed to step
over the deceased’s
body which was on her path to the telephone
and covered by blankets and the duvet. The statement made to Swart
was to the effect
that the intruders had accosted and strangled the
deceased in the kitchen. That the appellant was the source of this
version is
confirmed by the fact that it was put to Gangat, under
cross-examination on her behalf, that the deceased was attacked and
killed
in the kitchen and her body later dragged to the bedroom.
Plainly this version was put forward to bolster the notion that it
was
the deceased who opened the kitchen door through which the
intruders gained entry into the house.
[73] The appellant
testified that after the two intruders had hastily left her bedroom
it was quiet thereafter and it was only then
that she felt it safe to
go and make a call for help.
There would thus be no
basis to suppose that the killers had later come back, removed
the body from the kitchen
and left it in the bedroom covered by a blanket and duvet with
the deceased’s
hands neatly folded on her chest. That the killers would have done
all of this is as improbable as it is fanciful.
But the evidence of
Sibusiso provides an answer to this. The deceased was, according to
him, strangled, dropped to the floor and
left by the killers lying
there partly in the bedroom and partly in the passage, uncovered.
[74] Moreover, if the
intention of the intruders was to commit robbery and the killing of
the deceased was
incidental, it is again hard to understand why the intruders would
have left her unharmed as the appellant testified.
The intruders
were, according to her version, aware of her presence, she had the
opportunity to recognise them as their faces were
not masked and she
in fact identified Sibusiso at the trial as the person who tied her
up with an electric cord. Of course Sibusiso
said that the appellant
was present with them when Mandla strangled the deceased to death.
When they were leaving the appellant
suggested that they remove a
video recording machine so as to create the impression that the
intruders came there to commit robbery.
Conclusion
[75] To my mind the
aforegoing factors considered cumulatively cast a shadow on the
appellant’s credibility. Thus the credibility
findings of the
trial court made in May 2010, the upshot of which is that the earlier
evidence given by Dube was truthful and reliable
when contrasted with
her later version recanting her earlier evidence are indeed, as the
trial judge found, reinforced by the coherence
of her earlier
versions despite the fact that
those earlier versions
contained minor internal – but not material –
contradictions. Considered in the context of the
evidence in its
totality, Dube’s earlier version clearly dispels any notion
that it was a product of fabrication calculated
to serve a particular
end, namely to falsely secure the appellant’s conviction.
Moreover, if one accepts the evidence of
Gangat as to where the body
of the deceased was when he discovered it – bearing in mind
that it is common cause that he was
the first person to arrive after
the intruders had
left – such
evidence undermines, in a fundamental way, the thrust of the
appellant’s evidence thus rendering it highly
implausible. It
bears repeating that Gangat saw that the
deceased’s hands
were folded on her chest when he discovered the body. It is
inconceivable that the person who strangled the
deceased would have
done this. The deceased could not herself have folded her arms in
this way. The inference is therefore irrestible
that it was the
appellant who did this.
[76] To sum up, the trial
judge was acutely alive to the need to approach the evidence of Dube
and Sibusiso with the requisite caution
that the circumstances of the
case demanded. She took cognisance of the shortcomings in their
evidence and weighed the State’s
evidence against that of the
appellant in reaching the conclusion she did. That conclusion cannot
be faulted.
[77] The aforegoing
conclusion renders it unnecessary to deal with numerous other
submissions made in the appellant’s heads
of argument for none
of them, in my view, detract from that conclusion.
[78] In the result the
appeal is dismissed.
___________________
X M Petse
Acting Judge of Appeal
APPEARANCES
For the Appellant: J
Engelbrecht SC
L M Erasmus (Ms)
Instructed by: A S Jaffer
Attorneys, Pretoria
Symington & De Kok,
Bloemfontein
For the Respondent : J J
Jacobs
Instructed by: Director
of Public Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein