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[2021] ZAMPMBHC 52
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S v Maluka (CC 14/2019; M 69/2018) [2021] ZAMPMBHC 52 (5 November 2021)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
CASE
NO: CC 14/2019
DPP
REF: M 69/2018
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
05
November 2021
In
the matter between:
THE
STATE
v
LUCAS
THULANI
MALUKA
ACCUSED
JUDGMENT
ON MERITS
MOOSA
AJ
:
[1]
MR LUCAS THULANI MALUKA (‘accused’)
is arraigned
on the following charges:
[1.1]
COUNT 1
:
MURDER
- read with the
provisions of Section 51(1) and Part 1 of Schedule 2 of the Criminal
Law Amendment Act No 105 of 1997
IN
THAT
during the period 25-27 November
2017 and at or near Daantjie, in the district of Pienaar, the accused
did unlawfully and intentionally
kill
GIVEN
SIBUSISO MALUMANE
, an adult male
person.
[1.2]
COUNT 2
:
ROBBERY
WITH AGGRAVATING CIRCUMSTANCES
as
defined in section 1 of Act 51 of 1977 and read with the provisions
of section 51(2) of Act 105 of 1997
IN
THAT
during the period 25-27 November
2017 and at or near Daantjie, in the district of Pienaar, the accused
did unlawfully and intentionally
assault
GIVEN
SIBUSISO MALUMANE
, and did then and
there and with violence take from the said
GIVEN
SIBUSISO MALUMANE
an Alcatel cellphone.
The property or in the lawful possession of the said
GIVEN
SIBUSISO MALUMANE,
aggravating
circumstances being present in that the said
GIVEN
SIBUSISO MALUMANE
was killed.
[1.3]
COUNT 3
:
ATTEMPTED EXTORTION
IN
THAT
on or about 27 November 2017, and
at or near Daantjie in the district of Pienaar the accused did
unlawfully and intentionally induce,
threaten, subject to pressure or
inspire fear in the mind of
BUSISIWE
FAKUDE
by informing her that she must
pay the accused an amount of R 6000.00 (six thousand rand) and if she
did not, the deceased would
be killed, and therefore the accused did
then by means of the said threat, inducement or, unlawfully and
intentionally attempt
to obtain an advantage not due to him, to wit
an amount of R 6000.00 (six thousand rand).
[2]
At the commencement of the trial the State handed in a psychiatric
report in terms
of section 79 of the Criminal Procedure Act (‘CPA’)
by three Psychiatrists, namely: Prof E. Weiss, Dr T. J. Nkoana,
and
Dr MP Pitjeng as
Exhibit “A”;
and which report the
accused did not object to or dispute the contents thereof and the
findings therein. The aforementioned panel
found that the accused is
fit to stand trial, and that he had the capacity to appreciate the
wrongfulness of his actions at the
time of the alleged offence, and
he had the ability to act in accordance with appreciation of the
wrongfulness of his actions.
[3]
The accused pleaded not guilty to the charges which he faced in the
indictment. Mrs
Erasmus, (‘Erasmus’) on behalf of the
accused confirmed that the accused’s plea was in accordance
with her instructions,
and that his defence was a bare denial to the
charges preferred against him.
[4]
The accused was duly explained the provisions, application and
implications of the
Criminal Law Amendment Act No. 105 of 1997
(‘Minimum Sentences Act’), as well as the seriousness
thereof. He confirmed
that he accordingly understood the provisions
of the aforementioned Act.
[5]
During the course of the trial, and as part of the formal admissions
in terms of section
220 of the CPA, the accused consented to the
handing in of both sworn affidavits in respect of collection of
blood-stained t-shirt
and shoe laces of the accused, and crime scene
photo album by Warrant Officer Ncamiso Boshomane (‘Boshomane’)
as Exhibits
“
B”
and “
C”
respectively.
[6]
The accused further made formal admissions in terms of Section 220 of
the CPA, inter
alia, briefly (
Exhibit “D”
):
[6.1]
admitting
that on 25 October 2018,
Sergeant
Bonisile Daphney Mjali collected buccal reference samples from the
biological mother of the deceased, namely Lizzy Shongwe
with DNA
Reference Sample Collection Kit, bearing unique alphanumeric code to
wit 13D2AB2502TF. She further closed it with a tamper
proof seal and
placed it in an evidence bag that bore unique alphanumeric code to
wit PA4001798304, and which she also sealed with
a tamper proof seal.
[6.2]
admitting the chain of evidence in respect of the exhibits; and that
on 26 October 2018, Sergeant
Ralph Dorington Mapahanga (‘Maphanga’)
delivered the buccal reference samples to the Forensic Sciences
Laboratory at
Silverton, Pretoria (‘FSL’).
[6.3]
admitting that the deceased did not sustain any further injuries from
the crime scene, until Dr Gantcho
Prodanov Gantchev conducted a
medico-legal post-mortem examination on the body of the deceased on
28 November 2017, and recorded
his findings on form GW7/15, with
Death Register NO. 561/2017, and which has been handed in as
Exhibit
“
E”
.
[6.4]
admitting
that the originality,
authenticity, facts and findings in the medico-legal post-mortem
examination report by Dr Gantcho Prodanov
Gantchev, handed in as
Exhibit
E
are correct, and the cause of death of the deceased is correctly
recorded as: “
BLUNT HEAD TRAUMA”
[6.5]
admitting that on 31 January 2019, Senior Forensic Analyst, namely:
Captain Regina Cecilia Janse van
Rensburg who is in the service of
the State at Forensic Science Laboratory, Silverton, Pretoria
subjected the blood from the shoe
laces found in the accused’s
bedroom and the buccal reference sample from the mother of the
deceased to a DNA analysis system,
by a process requiring skill in
biology and deposed to an affidavit in terms of section 212(4) of the
Act (‘DNA report’)
in which she reported her findings;
and which affidavit may be admitted as
Exhibit “F”
.
[7]
To discharge the onus upon it to prove that the accused committed the
crimes charged,
the prosecution called the following seven viva voce
witnesses:
[7.1]
Cst Ralph Dorington Maphanga
(‘Maphanga’), a
member of the South African Police Services and the investigating
officer testified, inter alia, as
follows:
[a]
On 27 November 2017, whilst on duty he received information of a
murder at Komani
Trust, and accordingly attended at the scene. Upon
his arriva,l he observed members of the community present where a
body was found
lying in a ditch, and which was covered with grass and
soil. He observed the deceased to be rolled in a blanket.
[b]
Upon further investigation he discovered that the body was found at
the same premises
wherein the accused was residing at the time.
[c]
He spoke to the accused’s relative, one Jabulile, and who
informed him that
she was duly contacted by a neighbour and advised
that there was something suspicious around the homestead. She
proceeded to investigate,
and subsequently discovered a body. In
addition thereto, she discovered blood in the pit toilet, and which
caused her to contact
the members of the SAPS.
[d]
He was informed that the accused was the only person who resided in
the room, and
he accordingly sought permission from Jabulile to enter
and search the said room. Upon entry therein with Jabulile, he found
a
blue T-shirt that was blood stained, and which he was informed
belonged to the accused. In addition thereto, he found shoelaces
that
were covered in blood. These items were accordingly seized as
exhibits, the scene was photographed, the body was removed from
the
scene, and the exhibits subsequently sent to the FSL in Pretoria. At
this stage the whereabouts of the accused were unknown.
[e]
During his investigation he had occasion to speak to the accused’s
sister and
was informed that the accused was in Ogies. He was further
informed that the accused’s elder aunt suspected the accused of
being involved in the death of the person who was found at the
accused’s place of residence. Consequently, members of the
Ogies SAPS were duly summoned, in order to arrest the accused.
[f]
Both himself and W/O Lekuleni travelled to Ogies in order to fetch
the accused.
At the time of fetching the accused, he was informed by
the accused that he had forgotten some of his clothes at his eldest
aunt’s
home. The accused’s younger brother handed over
some items of clothing, as well as an Alcatel cellphone to this
witness.
[g]
Whilst they were on their return journey, the Alcatel cellphone rang
and he answered
it. The caller identified himself as one Daniel Khoza
(‘Khoza’), and requested to speak to Given Malumane
(‘Malumane’).
[h]
Khoza further informed him that he was Malumane’s uncle and
that he was looking
for his nephew. Maphanga then requested Khoza to
attend at the Pienaar SAPS the following morning, as he was tracing
the identity
of the body that was discovered, and wanted the family
to attend an identification of the body. Khoza further informed him
that
the deceased had left his home on the Sunday evening and
disappeared. Maphanga then came to the conclusion that the body found
might well be that of Malumane.
[i]
On 28 November 2017, Khoza arrived with his sister and the body was
positively
identified as Malumane (hereinafter referred to as the
deceased). In addition thereto, the deceased’s cellphone was
positively
identified.
[j]
In addition to the deceased’s cellphone that was found in the
accused’s
possession, a while later he received the deceased’s
trouser and cavallo shoes from the accused’s younger brother,
Carlson Andries Lubisi (‘Lubisi’). In amplification
hereof, this witness testified that at the time of the accused’s
arrest by members of the Ogies SAPS, the accused had put aside two
pieces of clothing. Lubisi had learnt at a certain stage, after
the
accused’s arrest, that the deceased’s family had
mentioned that certain of the deceased’s clothing had still
been missing. Lubisi then contacted this witness and subsequently
handed him a pair of black Nike shorts and the cavallo shoes
that
were positively identified as belonging to the deceased.
[k]
A forensic DNA analysis of the blood found on the accused’s
clothing and the
shoelaces confirmed that such sample matched the
deceased’s blood.
That in essence concluded
the evidence of the 1
st
witness, Maphanga.
[7.2]
Nomsa Shongwe
(‘Shongwe’), the deceased’s
mother testified, inter alia, as follows:
[a]
She confirmed that she was staying with the deceased and her
daughter, Busisiwe Fakudze
(‘Fakudze’) at the time of his
disappearance on Sunday, 26 November 2017. She last saw him on the
aforesaid date at
14h00, when he had gone out to buy some food.
[b]
On Monday, 27 November 2017 she contacted his employers at Spur and
was informed that
he had not reported to work, and they had not seen
him since the Friday. She thereafter requested Fakudze to call the
deceased
on his cellphone, in order to find him.
[c]
Fakudze dialed the deceased’s cellphone number and it was
answered by an unknown
male person. The telephone was subsequently
given to Shongwe and she spoke to this unknown male, who had answered
the deceased’s
cellphone. This person identified himself as
Musi Shibango (‘Shibango’), and when asked that she
wanted to speak to
the owner of the phone, he asked her as to who was
the owner of the cellphone. She informed him that the cellphone
belonged to
Given. Shibango then told her that Given had gone out to
buy another phone, as the current one was not working properly.
[d]
The conversation continued and she insisted on speaking to her son,
Given. Shibango
then terminated the call, which resulted in both
herself and Fakudze calling the deceased’s cellphone
incessantly. Shibango
subsequently answered the phone and informed
Shongwe that her child (Given) owed him the amount of R 6000.00 (six
thousand rand).
He then demanded the aforementioned amount, and she
then queried from him as to whether he would return her child, if she
paid
over the money. Shibango said that it was fine and that he would
give her child to her.
She subsequently advised
Shibango that she would arrange to make payment to him at the SAPS.
He refused to meet her at the SAPS,
and this made her realise that
her son was in trouble, if he were alive. She was subsequently
informed of a dead body and due to
the fact that it was late decided
to proceed to the spot the following day where the body of the
deceased was found.
[e]
She confirmed that a buccal sample was taken from her during the
investigation of
this matter. Further, she positively identified the
clothes, shoes and cellphone of the deceased, and which he was
wearing and
had in his possession at the time of his disappearance.
[f]
During cross examination she confirmed that she was not told by the
unknown
person that he would kill her son, if the money was not paid.
That in essence concluded
the evidence of the 2
nd
witness, Shongwe.
[7.3]
Ncamisa Boshomane
(‘Boshomane’), a member of the
SAPS and holding the rank of warrant officer, stationed at the Local
Criminal Record
Centre, Mbombela testified, inter alia, as follows:
[a]
He attended the crime scene on 27 November 2017, at 52 Daantjie
Trust, Pienaar where
he took photographs of the scene and collected
exhibits as follows:
i).
1 x navy golf shirt with possible human blood inside the accused’s
room;
ii).
1 x grey trouser with possible human cells inside the accused’s
room;
iii).
2 x white shoe laces with possible human skin cells inside the
accused’s room, near
the bed.
[b]
On 01 May 2018, he forwarded the collected samples to the FSL in
Pretoria for analysis.
That in essence concluded
the evidence of the 3rd witness, Boshomane.
[7.4]
Busisiwe Figiswa Fakudze
(‘Fakudze’), the
deceased’s sister testified, inter alia, as follows:
[a]
She confirmed that she was staying with the deceased and her mother,
Shongwe at the
time of his disappearance on Sunday, 26 November 2017.
She last saw him on the aforesaid date at 14h00, when he had gone out
to
buy some food for her child.
[b]
She confirmed that on 27 November 2017, when she called the deceased
on his phone,
that it was answered by an unknown young male, and who
refused to identify himself. He indicated that he had the owner of
the phone
and that it would not be possible to speak to him. He
subsequently introduced himself as one Sizwe Shibango, and demanded
the amount
of R 6000.00 (six thousand rand) to be paid in order for
Fakudze to speak to him. He then terminated the call.
[c]
She then reported this matter to her mother, who subsequently spoke
to Shibango, and
who reiterated his demand for R 6000.00 (six
thousand rand) in order for them to speak to the deceased. She
subsequently reported
the matter to her uncle.
[d]
She was clear that Shibango had said that he would kill the deceased
if the amount
of R 6000.00 (six thousand rand) was not paid.
[e]
She positively identified the deceased’s Alcatel cellphone, as
well as the black
Nike shorts and cavallo shoes.
[f]
During cross examination she confirmed that Shibango had told her
that the deceased
owed him R 6000.00 (six thousand rand) and that he
requires payment, and that he would kill the deceased if the money
was not paid.
[g]
During cross-examination, the accused admitted that he had spoken to
Fakudze, whilst
using the deceased’s phone.
That in essence concluded
the evidence of the 4th witness, Fakudze.
[7.5]
Daniel Sydney Khoza
(‘Khoza’), the deceased’s
uncle testified, inter alia, as follows:
[a]
He learnt of the disappearance of the deceased on 27 November 2017,
and assisted the
family by calling the deceased’s cellphone.
[b]
He confirmed that he spoke to a member of the SAPS, and who confirmed
that he was
in possession of the deceased’s cellphone, and
requested him to attend at the SAPS in order to identify the
cellphone.
[c]
He duly proceeded to the SAPS and identified the deceased’s
cellphone.
That in essence concluded
the evidence of the 5th witness, Khoza.
[7.6]
Carlson Andries Lubisi
(‘Lubisi’), the accused’s
elder brother testified, inter alia, as follows:
[a]
On 27 November 2017, the accused arrived at approximately 08h00 at
his place of residence
at Paula Trust in Ogies, with a bag containing
clothing.
[b]
He confirmed that the accused was arrested on the aforesaid date and
that he handed
the accused’s bag to the arresting officers.
[c]
At a certain stage he attended at the Graskop court as a witness in
order to testify,
and where he met the accused’s family
thereat. Whilst at court he overheard the deceased’s family
discussing the clothing
that the deceased was wearing at the time of
his disappearance, as well as the fact that they had not recovered
his clothing.
[d]
He duly realised that the clothes which the accused had left behind,
had in fact not
belonged to him, but the deceased. He gave Maphanga
the black Nike shorts and the cavallo shoes. These items were
positively identified
as belonging to the deceased.
[e]
He further confirmed that he had given the accused’s bag to the
SAPS, together
with the cellphone that the accused had in his
possession on the day in question.
That in essence concluded
the evidence of the 6th witness, Lubisi
[7.7]
Busi Pinky Mndawe
(‘Mndawe’), the accused’s
aunt and owner of 52 Daantjie Trust, Pienaar testified, inter alia,
as follows:
[a]
She confirmed that she was no longer residing at the aforementioned
address and that
it was only the accused who was residing on her
property as at 27 November 2017; and she identified the room depicted
on the photographs
wherein the exhibits were found, as the room where
the accused was residing in.
[b]
Mndawe confirmed that on 27 November 2017, she communicated with her
aunt in Ogies
regarding this matter. Her aunt informed her that the
accused was in Ogies. She was rather surprised that the accused was
in Ogies
at 08h00, despite the fact that he was at her residence the
night before, between 20h00 – 22h00.
That in essence concluded
the evidence of the 7th witness, Mndawe and the case for the state
was accordingly closed.
[8]
The Accused testified in his defence and stated, inter alia, as
follows:
[a]
As at 27 November 2017, he was residing at 52 Daantjie Trust,
Pienaar, and confirmed
that he was present at his residence. He was
present thereat at 05h00 – 06h00, and thereafter proceeded to
Witbank due to
the items that were found in his room. He confirmed
that he was at Mndawe’s residence on the evening of 26 November
2017
between 20h00 and 22h00, and as testified to by her.
[b]
He arrived at his residence during the early hours of 27 November
2017 after visiting
taverns, and upon his entry therein noticed
several items of clothing in his room, and which did not belong to
him. He further
observed blood on his takkies and T-shirt and did not
know as to how the blood had got onto his items. He was surprised to
find
a cellphone on his table and a pair of black Nike shorts that
had blood on them. Further, he found a pair of cavallo shoes and
which were not blood stained and decided to wear them for his trip to
Witbank.
[c]
He put the items in his bag and proceeded to Witbank. Upon his
arrival thereat, he
found out that the elders had gone to town, so he
decided to wash his bloodied takkies.
[d]
He did not report his finding of the items in his room to anyone at
Daantjie Trust,
Pienaar, and to seek assistance, as he was scared.
[e]
He confirmed that Fakudze was speaking the truth when she testified
that someone had
demanded the amount of R 6000.00 (six thousand
rand). To this end, he confirmed that it was him that had demanded
the aforesaid
amount from Fakudze. He further stated that he had
informed Fakudze that the owner of the phone was unavailable and that
he had
left the phone with him.
Fakudze demanded the
phone and he then informed her that she would need to pay an amount
of R 6000.00 (six thousand rand) if she
wanted the phone to be
brought to her.
[f]
He denied speaking to Shongwe and Khoze regarding the cellphone and
the demand
of R 6000.00 (six thousand rand).
[g]
He denied sleeping at his room on the evening of 26 November 2017,
and further denied
any knowledge regarding the death of the deceased.
[h]
During cross-examination, he stated that he took some of the bloodied
items from his
room and left others therein. He further confirmed
having seen the blood stains in the toilet, as depicted in the
photograph album.
[i]
During cross-examination he denied any knowledge as to how blood had
got onto
his takkies, and denied seeing the blood stained shoelaces
that were recovered from his room, near his bed.
[j]
He was of the view that someone wanted to frame him for the murder of
the deceased. Further, he believed that it was better to go to his
aunt than the SAPS, when he found the items in his room.
[k]
During a clarifying question from the court, the accused admitted
that he demanded
the amount of R 6000.00 (six thousand rand) from
Fakudze as she was demanding the return of the cellphone. He further
admitted
that he was found in possession of the deceased’s
cellphone and his (accused’s) blood stained takkies.
That in essence concluded
the evidence of the accused and his case was closed.
EVALUATION OF
EVIDENCE
[9]
It is trite that in order to succeed with the prosecution, the State
has to discharge
the onus to establish the guilt of the accused
beyond reasonable doubt and on the other hand the accused bears no
onus but will
be entitled to a discharge if he presents an
explanation of innocence which is reasonably possibly true. This
trite legal test
is more succinctly and elegantly stated by Nugent JA
in
S
v Mbuli
[1]
as follows:
‘
It
is trite that the State bears the onus of establishing the guilt of
the appellant beyond reasonable doubt, and the converse is
that he is
entitled to be acquitted if there is a reasonable possibility that he
might be innocent. In whichever form the test
is applied it must be
satisfied upon a consideration of all the evidence’.
‘
An
accused version can only be rejected if the court is satisfied that
it is false beyond reasonable doubt. An accused is entitled
to an
acquittal if there is a reasonable possibility that his or her
version may be true. A court is entitled to test an accused’s
version against the improbabilities. However, an accused’s
version cannot be rejected merely because it is improbable’.
[2]
[10]
In
S v Shackell 2001(2) SACR 185 SCA
it was held that “
it is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable
doubt and that a mere
preponderance of probabilities is not enough. Equally enough is the
observance that, in view of this standard
of proof in a criminal
case, a court does not have to be convinced that every detail of the
accused’s version is true. If
the accused’s version is
reasonably possibly true in substance the court must decide the
matter on the acceptance of that
version. It is indeed permissible to
test the accused’s version against the inherent probabilities.
It cannot be rejected
merely because it is improbable: it can only be
rejected on the basis of inherent probabilities if it can be said to
be so improbable
that it cannot reasonably possibly be true.”
[11]
In assessing the evidence, a court must in the ultimate analysis look
at the evidence holistically
in order to determine whether the guilt
of the accused is proved beyond reasonable doubt. This does not mean
that the breaking
down of the evidence in its component parts is not
a useful aid to a proper evaluation and understanding thereof. In
S
v Shilakwe
[3]
at
page 20, para [11], the Supreme Court of Appeal approved of the
following
dictum
:
“
But
in doing so, (breaking down the evidence in its component parts) one
must guard against a tendency to focus too intently upon
the separate
and individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in the trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood from the trees.”
See
S
v Hadebe and others
[4]
and
S
v Mbuli
[5]
.
[12]
It is acceptable in evaluating the evidence in its totality to
consider the inherent probabilities.
Heher AJA (as he then was) dealt
with this aspect as follows:
“
The
correct approach is to weigh up all the 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 any reasonable doubt about
the
accused’s guilt.”
See
S
v Chabalala
[6]
.
In this regard it is apposite to consider the evaluation of inherent
probabilities by the trial court as accepted by the Supreme
Court of
Appeal in
Magadla
v S
[7]
,
delivered on 16 November 2011, (unreported), at paragraph [22] and
further.
[13]
I am mindful of the basic principles to be applied when evaluating
evidence. In this regard,
it is trite that evidence must be weighed
in it’s totality and that probabilities and inferences must be
distinguished from
speculation and conjecture.
Navsa
JA in
S
v Trainor
[8]
stated
as follows: “A conspectus of all the evidence is required.
Evidence that is reliable should be weighed alongside such
evidence
as may be found to be false. Independently verifiable evidence, if
any, should be weighed to see if it supports any of
the evidence
tendered. In considering whether evidence is reliable, the quality of
that evidence must of necessity be evaluated,
as must corroborative
evidence, if any. Evidence, of course, must be evaluated against the
onus on any particular issue or in respect
of the case in it’s
entirety”
[14]
The quote from the judgment of Malan JA in R v Mlambo
[9]
at 738 A and B is apposite:
‘
In
my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused.
It is
sufficient for the Crown to produce evidence by means of which such a
high degree of probability is raised that the ordinary
reasonable
man, after mature consideration, comes to the conclusion that there
exists no reasonable doubt that an accused has committed
the crime
charged. He must, in other words, be morally certain of the guilt of
the accused. An accused’s claim to the benefit
of doubt when it
may be said to exist must not be derived from speculation but must
rest upon a reasonable inference which are
not in conflict with, or
outweighed by, the proved facts of the case. Moreover, if an accused
deliberately takes the risk of giving
false evidence in the hope of
being convicted of a less crime or even, perchance, escaping
conviction altogether and his evidence
is declared to be false and
irreconcilable with the proved facts; a court will, in suitable
cases, be fully justified in rejecting
an argument that,
notwithstanding that the accused did not avail himself of the
opportunity to mitigate the gravity of the offence,
he should
nevertheless receive the same benefits as if he had done so’.
[15]
I pause to mention that there are no eye-witnesses who actually saw
the robbery and the killing
of the deceased by the accused. Hence,
the State has relied to a certain extent on circumstantial evidence,
the testimony and version
of the accused, as well as the objective
medico legal evidence; in order to prove the allegations against the
accused, and in an
attempt to prove it’s case against the
accused. I am therefore required to objectively and in an impartial
and balanced manner,
consider all the evidential material in coming
to a decision.
[10]
[16]
It is trite that once a court is faced with circumstantial evidence
it naturally flows that it
is duly called upon to draw inferences
from the evidence thus presented.
“
In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
(1) The inference sought
to be drawn must be consistent with all the proved facts. If it is
not, the inference cannot be drawn.
(2)
The proved facts should be such, that they exclude every reasonable
inference from them save the one sought to be drawn. If
they do not
exclude other reasonable inferences, then there must be doubt whether
the inference sought to be drawn is correct.”
[11]
[17]
The value of circumstantial evidence is often found in a whole range
of independent circumstances,
all giving rise to the same conclusion.
It is imperative for the court to consider all these circumstances as
a whole and not to
assess each in isolation.
“
The
court must not take each circumstance separately and give the accused
the benefit of any reasonable doubt as to the inference
to be drawn
from each one so taken. It must carefully weigh the cumulative effect
of all of them together, and it is only after
it has done so that the
accused is entitled to the benefit of any reasonable doubt which it
may have as to whether the inference
of guilt is the only inference
which can reasonably be drawn. To put the matter in another way, the
Crown must satisfy the court,
not that each separate fact is
inconsistent with the innocence of the accused, but that the evidence
as a whole is beyond reasonable
doubt inconsistent with such
innocence.”
[12]
[18]
In De Villiers supra at 508 it is said: “…even two
particles of circumstantial evidence-though
taken by itself weigh but
as a feather – join them together, you will find them pressing
on the delinquent with the weight
of a millstone….”
[19]
Circumstantial evidence is indirect proof from which a court is
required to draw inferences which,
when weighed with all other
evidence, may contribute towards proving a fact in issue. The
inference must comply with certain rules
of logic.
[13]
The reasonable inference has to be drawn only from proved facts and
not from facts based on suspicion.
[14]
Circumstantial evidence
has on occasion been described as a chain, the links of which consist
of pieces of evidence. This is not
correct as it implies that the
chain will be broken once one piece of evidence is rejected. It is
better to compare it with a braided
rope: as the strands break, the
rope weakens and conversely, as strands are added, the stronger it
gets. The gist of the matter
is that one piece of circumstantial
evidence may be inconclusive, but once other evidence is added, it
gains probative force.
[20]
The principles that are to be applied in assessing circumstantial
evidence were re-stated as
follows in
S
v Reddy & others
1996 (2) SACR 1
(A)
8
at c-h
:
“
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 the 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
1939 AD 188
at 202-3, 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 consistent with all the proved
facts and, secondly, the proved facts should be such 'that they
exclude
every reasonable inference from them save the one sought to
be drawn’.”
[21]
The
ratio
of Hendricks J in
S v Nkuna
2012 (1) SACR 167
(B)
sets out the approach to circumstantial evidence, at paragraph 121 as
follows:
“
The
evaluation of circumstantial evidence must be guided by a test of
reasonableness. The onus on the State is not that it must
prove its
case with absolute certainty or beyond a shadow of a doubt. All that
is required is such evidence as to satisfy the court
and prove its
case beyond a reasonable doubt. It is trite law that the accused is
under no legal obligation to prove his innocence.
The State must
prove the guilt of the accused beyond a reasonable doubt”.
[22
]
Having carefully considered the totality of the evidence and the
mosaic of proof before me, I do
not deem it necessary to traverse the
evidence of all the witnesses that testified during the trial, for
the sake of brevity and
to avoid unnecessary prolix, as the issue to
be determined is crisp and unambiguous. As such, the only issue that
this court has
to decide, is whether the accused was involved in the
commission of the crimes, as charged.
[23]
I pause to mention that upon a conspectus of all the evidence before
me, the following can be
regarded as common cause between the
parties.
[a]
The accused resided at house number [....] Nkomani Trust, Daantjie as
at 27 November
2017;
[b]
The deceased was found dead near the accused’s room, in a
shallow grave, wrapped
in a blanket and covered with grass and
gravel;
[c]
The accused arrived at Phola, Ogies on Monday 27 November 2017 in
possession of the
deceased’s cellphone, clothes of the deceased
(a pair of black, size 9 cavallo shoes and a black Nike shorts), and
which
the deceased was wearing when he was last seen on Sunday, 26
November 2017;
[d]
The ownership of the cellphone and the clothes belonging to the
deceased, which were
subsequently recovered from the accused;
[e]
That the accused’s takkies were blood stained;
[f]
That the DNA that was found on the shoe laces recovered inside the
accused’s
room matched that of the deceased.
[g]
That the accused did not report to anyone the fact that he allegedly
found the items
in his room, upon his return thereat during the early
hours of Monday, 27 November 2017;
[h]
That he took the cellphone and other items of clothing, placed them
in a bag, leaving
other bloodied items in his room and proceeded to
Phola Trust, Ogies on 27 November 2017;
[i]
That he spoke to Fakudze and demanded an amount of R 6000.00 (six
thousand rand),
and which amount was never handed over to the
accused.
[24]
Essentially, having distilled all the common cause facts between the
parties the only dispute
to be adjudicated upon is the determination
of whether the accused was involved in the commission of the crimes
so charged.
[25]
It is clear from the evidence that the deceased was found dead near
the accused’s room,
and whilst he (accused) had made haste to
Ogies, in possession of the deceased’s belongings. The accused
does not deny being
in possession of the deceased’s items, but
explains that he had come across the items in his room, and was
surprised at the
presence of these unknown items that were in his
room.
[26]
The accused explained that he did not report this find and the fact
that he had observed bloodied
items of clothing, as well as blood in
the toilet to the SAPS or to any other member of his community or
family member in the vicinity
of his home. In my view, one would have
expected an innocent person to have immediately sounded the alarm
regarding the discovery
of these unknown items within his room. The
accused simply does not report this to anyone, but decides to place
his bloodied takkies
in his bag, takes the deceased’s clothes
and cellphone, proceeds to wear the deceased’s shoes, and
travels to Phola
Trust, Ogies arriving at 08h00 on 27 November 2017.
[27]
The accused whilst in possession of the deceased’s cellphone
proceeds to answer same, provides
a false identity to Shongwe and
Fakudze and demands R 6000.00 (six thousand rand) to either release
the deceased and/or not to
kill him. If the accused is as innocent as
he makes out to be, then in my view he would have immediately both
positively and properly
identified himself to the aforementioned, and
would have explained to them the circumstances under which he
allegedly found the
phone. The accused simply does not do so, but
provides a false name and address and proceeds to demand the
aforesaid amount from
the witnesses. Surely, this cannot be said to
be the conduct of an innocent person, who is bewildered at finding
items in his bedroom,
approximately 200 kilometres (two hundred)
away.
I pause to mention that
the accused advised the witnesses that they are unable to talk to the
deceased as he is not available. In
my view, the accused was speaking
the truth that the deceased was unavailable to take the call, as he
knew that the deceased was
already dead.
[28]
I have carefully applied my mind to the post mortem examination
report in coming to a conclusion
regarding the guilt of the accused
in the commission of the crimes on counts 1 and 2.
The following injuries
were observed on the deceased during the post mortem examination:
[a]
Four superficial and non-life threatening stab wounds to the left
side of the neck,
sized from 8mm to 25mm in length respectively;
[b]
Left supra-orbital ridge laceration sized 30 mm in length revealing
an open fracture
of the underlying bony structure of the skull;
[c]
Laceration to mid and left upper side of upper and lower lip
revealing underlying
fracture of the upper and lower jaw (due to
heavy blunt impact);
[d]
Abraded tip of the nose middle and right side featuring palpable
fracture of the underlying
bony nose.
[29]
It is clear from the nature of the aforementioned injuries and the
resultant cause of death being
“Blunt head trauma” that
the person inflicting the injuries had a single minded resolve when
using severe force to
cause the injuries, which ultimately resulted
in death. It is clear in my mind that together with the nature of the
injuries, the
vast amount of blood in the toilet and the fact that
the deceased was fairly well built, that the intention was to simply
seriously
injure the deceased, in order to subdue him and to rob him
of his belongings. Further, the nature and type of the injuries
inflicted,
in my view, is indicative of a degree of planning and/or
premeditation.
[30]
As regards the identification of the perpetrator, I am of the view
that the crisp answer to the
identity would be found in the objective
DNA evidence. It is clear that the shoelaces which contained the
deceased’s blood
was found on the floor of the accused’s
bedroom and near his bed. I find that in the absence of any
reasonable explanation
from the accused that the only reasonable
conclusion in this regard, is that it was the accused who was the one
who robbed and
killed the deceased during the period 25 – 27
November 2017.
This finding is further
fortified by the fact that the accused was found in possession of the
deceased’s cellphone and items
of clothing, and the added fact
that he attempted to extort money so as not to kill the deceased.
[31]
I find it highly improbable that someone else other than the accused
robbed, killed and hid the
body of the deceased at the accused’s
residence, removed the shoelaces from the accused’s shoes,
stained them with
the deceased’s blood, and thereafter planted
them together with the deceased’s cellphone and clothes in the
bedroom
of the accused. Unfortunately for the accused there is not an
iota of evidence before this court to support such an outlandish
contention.
[32]
Accordingly, I have carefully analysed the evidence before me and
applied the necessary caution
where necessary, and accordingly am
unable to find any reason to doubt the
ipsissima verba
of the
State witnesses. They gave their evidence in a clear and concise
manner without any material contradictions. On the other
hand the
accused made a very poor impression on this court during his
testimony. His version seemed to be very far fetched on the
available
evidence, and on any analysis of his evidence it simply cannot be
believed.
[33]
After careful consideration of the evidence of all the State
witnesses, and the totality of the
circumstantial evidence in support
of the charges, I am satisfied that the evidence of the State is
satisfactory in all material
respects to sustain a conviction on the
charges. The state witnesses made a good impression on this court,
whilst the accused was
an unimpressive and an unsatisfactory witness.
[34]
I have looked at the merits and demerits of this matter coupled with
the totality of the evidence
before me and accordingly reject the
version of the accused, as being false beyond reasonable doubt. I
duly accept the evidence
of the State witnesses. I further find that
on a consideration of the totality of the evidence the prosecution
has discharged the
onus to prove beyond reasonable doubt that the
accused has committed the crimes as charged. On the other hand the
accused has failed
to give an explanation of innocence which is
reasonably, possibly true and his version is accordingly rejected as
beyond false.
[35]
I have weighed all the elements that points towards the guilt of the
accused against those which
are indicative of his innocence, taking
proper account of the inherent strength and weaknesses, probabilities
and improbabilities
on both sides, and having done so, I find that
the balance weighs so heavily in favour of the State so as to exclude
any reasonable
doubt of the accused’s guilt.
[36]
I therefore conclude that the only reasonable inference to be drawn
from a conspectus of all
the evidence before this court, which
includes circumstantial and viva voce evidence, is that the accused
had the necessary intention
to rob the deceased during the period 25
– 27 November 2017, and during this process inflicted severe
injuries which caused
his death, and subsequently attempted to extort
monies from the deceased’s family.
[37]
In the result, the accused is found guilty as follows:
[a]
COUNT 1
MURDER READ WITH THE
PROVISIONS OF SECTION 51(1) AND PART 1 OF SCHEDULE 2 OF THE
CRIMINAL
LAW AMENDMENT ACT 105 OF 1997
.
[b]
COUNT 2
:
ROBBERY WITH
AGGRAVATING CIRCUMSTANCES AS DEFINED IN SECTION 1 OF ACT 51 OF 1977
AND READ WITH THE PROVISIONS OF SECTION 51(2) OF
ACT 105 OF 1997.
[c]
COUNT 3
:
ATTEMPTED EXTORTION.
C
I MOOSA
ACTING
JUDGE OF THE HIGH COURT
MPUMALANGA
DIVISION, MBOMBELA
05
NOVEMBER 2021
Counsel
for State:
Adv M
R Molatudi
Instructed
by:
Director of Public Prosecutions
Mbombela
Mpumalanga
Counsel
for Accused
Adv I Erasmus
Instructed
by:
Legal Aid SA
Mbombela
Mpumalanga
Dates
of hearing:
13 October 2021
14 October 2021
15 October 2021
02 November 2021
04 November 2021
Date
of judgment:
05 November 2021
[1]
2003
(1) SACR 97
(SCA); See also S v Trickett 1973 (3) SA 526 (T)
[2]
Susha
v S
2011 JOL 27877
(SCA)
[3]
2012
(1) SACR 16 (SCA)
[4]
1998
(1) SACR 422
(SCA) at 426 F – H
[5]
2003
(1) SACR 97
(SCA) at 110, para [57]
[6]
2003
(1) SACR 134
(SCA) paragraph [15]
[7]
80/2011
[2011] ZASCA 195
[8]
2003
(1) SACR 35
(SCA) at 9
[9]
1957
(4) 727 (AD)
[10]
S
v Ntsele 1998 (2) SACR 178 (SCA)
[11]
S
v Blom
1939 AD 188
at 202; See also S v Mtsweni
1985 (1) SA 590
(A)
at 593
[12]
S
v De Villiers
1944 AD 493
at 508-509
[13]
S
v Burger 2010 (2) SACR 1 (SCA)
[14]
S
v Mseleku
2006 (2) SACR 574
(D)