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[2019] ZAFSHC 11
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Ramatlotlo and Others v S (A94/2018) [2019] ZAFSHC 11 (10 January 2019)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : A94/2018
In
the matter between:-
KAMOHELO
RAMATLOTLO
First
Appellant
MOHLOUWA
JOHN
LETEANE
Second
Appellant
MOLAHLEHI
PATRICK
PHORORO
Third
Appellant
and
THE
STATE
Respondent
CORAM:
VAN ZYL, J
et
MOLITSOANE, J
HEARD:
17 SEPTEMBER 2018
JUDGMENT
BY
MOLITSOANE, J
DELIVERED:
10 JANUARY 2019
[1]
The appellants were convicted and sentenced in the Regional Court:
Welkom on a charge of murder, read with the provisions of
s51 of the
Criminal Law Amendment Act 105 of 1997(the Act) and Assault with
intent to do grievous bodily harm. They were each sentenced
to
20(twenty) years imprisonment for murder and 7(seven) years
imprisonment for assault with intent to do grievous bodily harm.
This
appeal against their convictions and sentences is with leave of this
court.
[2]
Mokete Makoanyane testified that in the early hours of the morning
and at The Zone tavern he met one Thabonyana. He asked for
lift from
the latter on his way home. Thabonyana operated a taxi business. They
left together. Along the way they picked up the
deceased and another
person. While travelling they noticed a white vehicle and Thabo
stopped and went to that vehicle. Thereafter
the said vehicle drove
away and Thabonyana followed it in his vehicle. When the white
vehicle approached a certain bridge it stopped
next to the road.
Thabonyana also stopped behind it. The first and third appellants
alighted from the white vehicle while the deceased
and the other
passenger also alighted from Thabonyana’s vehicle. The deceased
and the other passenger went to the first and
third appellant. Within
a few seconds the deceased got back in the vehicle and said he had
been stabbed. The other passenger never
came back. The witness did
not see who stabbed the deceased. They drove away and along the way
at Mazibuko’s house the deceased
alighted. They drove to the
garage where Thabonyana saw blood in his vehicle. Thabonyana cleaned
the blood in his vehicle. From
the garage they drove in Thabonyana’s
vehicle to James Nake street. The vehicle of Moleboheng appeared and
went to Tshepiso’s
house. They also went to the said house of
Tshepiso where he met the three appellants. He informed them that
Thabonyana’s
car was full of blood and someone had been
stabbed. He got a lift from Moleboheng to his home.
[3]
Tshepiso David Mokoena and the three appellants were passengers in a
vehicle driven by Moleboheng Tinte. While they were travelling
Moleboheng stopped her vehicle. The appellants alighted and went to
the vehicle of Thabonyana which had stopped behind them. He
saw a
person running on the other side of the road. At that stage the
appellants came back in the vehicle and Moleboheng drove
away. She
took him to his home. At his home he went inside to collect money and
upon his return to the vehicle he saw the three
appellants holding
knives.
[4]
Thabonyana Moses Makume testified that on the day of the incident he
was the driver of his taxi, a Honda Ballade. While so driving
a
vehicle alerted him to stop by its lights. He noticed that the
vehicle belonged to Moleboheng Tinte and he stopped in front of
it.
He went to the said vehicle to speak to the driver. He saw the three
appellants sitting at the back while Tshepiso sat in front.
After
speaking to Moleboheng he went back to his vehicle and drove off. He
saw Moleboheng following him at high speed and overtook
him and
brought her vehicle to an abrupt stop. The three appellants alighted.
The second appellant came to his side while the first
and third
appellant went to the back of his vehicle. One of his passengers
alighted and ran away while the first and third appellant
seem to
grab the other passenger who was at the back when he got out of the
vehicle. When the appellants left, the passenger told
him that they
took his cell phone and they stabbed him. He did not see who stabbed
him. He wanted to take him to the hospital but
he refused. He dropped
him at the corner of the house of one Mazibuko at his request. He
proceeded to a garage to fill in petrol,
He saw blood stains on his
vehicle and he cleaned it.He then took Mokete Makoanyane home where
after he went home to sleep, later
that day he again met the three
appellants and confronted them about the stabbing of the deceased.
[5]
xxxxxxxx Mothupi testified that he and the deceased were from work at
Blue Ribbon. They boarded a taxi driven by Thabonyana
Makume. While
they were driving their driver stopped the vehicle and went to
another vehicle, a Tazz. He did not take long and
he came back and
drove further away.When they were approaching a certain bridge the
Tazz came at speed and overtook them. It came
to a halt in front of
them and their driver nearly bumped it. Three people alighted from
the Tazz and came to the vehicle they
were in. They opened the doors
at the back .They took his cell phone and he went out but one of
those people stabbed him in the
hand. He managed to run away. He
could not identify the people who stabbed him. He also does not know
who stabbed the deceased.
[6]
On the other hand the versions of the three appellants boil down to a
bare denial as all three of them raised the defence of
alibi. The
only thing they seem to agree upon is that on the day of the incident
they were at The Zone tavern drinking until the
early hours of the
morning when they left for their different destinations.
[7]
The appellants rely on a number of grounds of appeal on the merits
which may in nutshell may be summarised as follows:
1.
“The court a quo erred in the
application for declaring the witness Thabonyana Moses Makume a
hostile witness and its subsequent
acceptance of the statement
he made before the police in terms of
s3
of the
Law of Evidence
Amendment Act 45 of 1988
;
2.
The court erred in excluding the
statements which the court admitted provisionally in the final
analysis of the case.
3.
The court erred in finding that the
three applicants acted in common purpose;
4.
The Honourable Court erred in finding
that the state has proven it case beyond a reasonable doubt.”
[8]
It is trite law that an appeal court will not lightly interfere wit
the findings of the trial court unless there is misdirection
on the
part of the trial court in the application of the law or the facts.
[9]
The appellants assail the conviction on the basis that the court
misdirected itself in excluding the police statements of Moleboheng
and Moeketsi. It has to be borne in mind that cross examination on
these statements was provisionally allowed on condition that
the
police official who took them came to testify. The witnesses in these
statements denied that the said statements were read
back to them.
The legal representative undertook to lead evidence of the person who
took them. That was not done. Much of the contradictions
referred to
by the defence centred on the testimony in court and previous
inconsistent statement made before the police. The previous
inconsistent statements were never proven as the person who took them
was never called. I further agree that the argument on the
said
contradictions fell by the road side for failure to prove the
previous inconsistent statements. The appellants knew that the
statements were provisionally admitted on condition that the police
official came to testify. That did not happen and the statements
thus
remained inadmissible and were properly excluded by the court
a
quo.
[9]
The appellants’ also assail the conviction on the basis that
the court
a quo
erred in rejecting the testimony of Thabonyana
Makume in court and accepting his previous inconsistent statement
made before the
police in terms of
s3
of the Law of evidence
Amendment Act 45 of 1998. It is contended that the appellants’
constitutional right to a fair trial
was infringed in that they were
denied the right to challenge the evidence contained in the said
statement.
[10]
I am unable to fathom this argument. It has to be borne in mind that
Thabonyana Makume was only declared a hostile witness
after a
protracted extensive cross examination by the defence which included
an extensive reference to the previous inconsistent
statement made
before the police. The appellants concede that the procedure followed
in proving the authenticity of the statement
and confronting him with
same was correct. It is trite that a party may not attack the
credibility of ones witness unless the court
has declared such a
witness hostile. The decision to declare a witness hostile lies in
the discretion of the trial court and another
court will not lightly
interfere in such a discretion.
[1]
In
Sv
Mathonsi
[2]
a previous inconsistent statement was accepted in evidence against
the accused as hearsay. I cannot find that the court erred in
accepting the previous inconsistent statement of Thabonyana as
hearsay herein.
[11]
Mr Molise in his heads of argument and during submissions before us
submitted that the Court
a quo
erred in finding that the
Appellants acted in common purpose whereas that was never averred
when the charge in count 1 was put
by the prosecution to the
appellants when they pleaded. It is indeed so that the charge sheet
does not contain an allegation that
the appellants acted in common
purpose in causing the death of the deceased in count 1. It is
apposite to mention that the appellants
were legally represented by
one attorney throughout the proceedings before the Court
a quo.
[12]
It is trite law that an accused person is entitled to such
particulars as he properly requires to enable him to prepare his
defence. In
R
v Adams and Others
[3]
the court said the following:
“
It
is a well-known principle in our law that an accused person is
entitled to such particulars as he properly requires for the purpose
of preparing his case before he is called upon to plead and enter
upon his defence, and he is entitled to such particulars even
if it
entails a disclosure of Crown evidence.”
[13]
In
S
v National High Command
[4]
the court held that:
Now
it is clear that where common purpose is alleged, the state has to
supply particulars of the facts on which it will rely in
order to ask
the court to draw the inference that each and one of the accused was
a participant in the conspiracy, or party to
the alleged common
purpose.”
[14]
In
S
v Ndaba
[5]
the state made an application in terms of
s86
of the
Criminal
Procedure Act 51 of 1977
to amend the charge sheet to reflect that it
intended to rely on the doctrine of common purpose. In granting the
application the
court held as follows:
“
I
am satisfied that the allegation of common purpose has to be made by
the state in the indictment, or at least in the summary of
substantial facts furnished in terms of s144(3)(a) of the Act.”
[15]
The obligation to inform the accused with sufficient particulars that
the state intends to rely on common purpose is currently
also
premised on the right of an accused to a fair trial as envisaged in
s35(3)(a) of the Constitution which provides that every
person has a
right to a fair trial which includes the right to be informed of the
charge with such particulars to answer it.
[16]
In
Msimango
v The State
[6]
the court
a
quo
in
convicting the appellant relied on common purpose even though it was
never averred in the charge sheet or proved in evidence.
On appeal
the SCA said the following:
“
[15] Undoubtedly,
the approach adopted by the Regional Magistrate of relying on common
purpose which was mentioned at the end of
the trial is inimical to
the spirit and purport of s35 (3) (a) of the Constitution of the
Republic of South Africa Act 108 of 1996.”
The
court in this case went further to say:
“
[16]…..The
requirement embodied in s35(3) is not merely formal but substantive.
It goes to the very heart of what a fair
trial is. It requires the
state to furnish every accused with sufficient details to put him or
her in a position where he or she
understands what the actual charge
is which he or she is facing. In the language of s35(3)(a) , this is
intended to enable such
an accused person to answer and defend
himself in the ensuing trial. Its main purpose is to banish any trial
by ambush.”
The
court in
Msimango
(supra) set aside the conviction where
the charge sheet was silent on any possible reliance on the doctrine
of common purpose.
[17]
Reverting to the matter at hand, it is not in dispute that the charge
sheet did not refer to the doctrine of common purpose.
It is my view
that it is not the intention that mere failure to aver in the charge
sheet that the state intends to rely on common
purpose should
automatically result in the unfairness of the trial. The next logical
question should be to enquire into the nature
of the prejudice the
appellants suffered by the failure to aver in the charge sheet that
the state intended to rely on common purpose.
[18]
The question of common purpose only surfaced for the first time
towards the end of the trial, specifically during the address
by both
counsel. It was never the case for the state that it intended to rely
on common purpose. The state witnesses in this case
were subjected to
a long, protracted cross examination and at no stage was it intimated
either by the state or the defence that
common purpose might be an
issue.
[19]
The appellants denied being on the scene of this incident. The
evidence of the reliability of the evidence of the state witnesses
must thus be weighed against the alibi and the evidence of the
witnesses called by each of the appellants.
[20]
Although the appellants denied being on the scene of the incident
much of the cross examination centred on how the incident
unfolded.
The identity of the appellants were not seriously challenged. It is
clear from the evidence led that according to Moleboheng,
Moeketsi
and Tshepiso the appellants were known to them. Moleboheng testified
that she had known the appellants for a considerable
time. The
appellants did not dispute this assertion by Moleboheng. According to
the testimony of Moleboheng she met the three appellants
at The Zone
tavern. He left with them when the tavern closed in the early hours
of the morning.They went to another drinking place.
They proceeded to
Dagbreek hotel and they found it closed. They then proceeded to the
drinking place of one Doctor and this palace
they also found closed.
They then decided to go home to sleep. It is at this material time
when driving home that the appellants
requested her to signal the
vehicle of Thabonyana to stop. In this regard she is corroborated in
material terms by Moeketsi Makoanyane
who was a passenger in her
vehicle.I can find no reason to reject the testimony of Moleboheng
and Moeketsi that the appellants
were with them in the Tazz vehicle
and that they alighted same to go to the vehicle of Thabonyana.
[20]
The evidence of Moleboheng and Moeketsi is corroborated in material
terms by Mothupi. Mothupi was a passenger in the vehicle
driven by
Thabonyana. He testified that he and the deceased were passenger in
the vehicle of Thabonyana. That the vehicle they
were passengers in
stopped behind a white Tazz. That three people alighted from the Tazz
and two of those people came towards them.
They were attacked as a
result of which he was stabbed. He did not know or identify the
people who attacked them. He did not know
who stabbed the deceased.
[21]
In order to be held liable on the basis on the basis of common
purpose the court in
S
v Mgedezi
[7]
said the following:
“
in the first
place, he must have been present at the scene where the violence was
being committed. Secondly, he must have been aware
of the assault on
the inmates of room 12. Thirdly, he must have intended to make common
cause with those who were actually perpetrating
the assault.
Fourthly, he must have manifested his sharing of a common purpose
with the perpetrators of the assault by himself
performing some act
of association with the conduct of the others. Fifthly, he must have
had the requisite mens rea, so in respect
of the killing of the
deceased, he must have intended them to be killed, or he must have
foreseen the possibility of their being
killed and performed his own
act of association with recklessness as to whether or not death was
to ensue.”
[22]
These requirements as laid down in
Mgedezi
have since been developed and redefined in subsequent decisions of
the SCA like
Magmoed
v Janse Van Rensburg and Others
[8]
where the court held that:
“…
common
purpose may arise by prior agreement between the participants or it
may arise upon an impulse without prior consultation
or agreement.”
[23]
The Constitutional Court has since held that after Mgedezi there
remains no doubt that where the prosecution relies on common
purpose
as a basis for criminal liability in a consequence crime such as
murder, a causal connection between the conduct of each
participant
in the crime and the unlawful consequence caused by one or more in
the group, is not a requirement.
[9]
[24]
Although the appellants were legally represented throughout the
trial, there is no evidence adduced suggesting that their legal
representative anticipated that the state intended on relying on
common purpose. I cannot even find that
s88
of the
Criminal Procedure
Act 51 of 1977
would find application herein.
[10]
In the work, Hiemstrar’s Criminal Procedure
[11]
,
the learned author says the following with reference to
s88:
“
It is thus more
particularly a charge which does not disclose an offence which is
envisaged here(
S v Moloinyane
1965 (2) SA 109
(O) at 111 C: Sv
Kuse
1990 (1) SACR 191(EC)at
196h
), because there is sufficient
provision for other mistakes in
section 86.
”
[25]
The defence throughout the trial focused on trying to highlight the
improbability of the state case. It was also never
put to the
appellants by the state during cross examination that they acted in
concert in the commission of the offence. The state
at no stage
applied for an amendment of the charge in terms of
s86
to reflect
that it intended to rely on the doctrine of common purpose. While one
accepts that common purpose is not an element
of the offence of
murder one also has to accept that an accused person has a
constitutional right to be apprised with sufficient
particulars to
enable him to prepare his defence. In this case failure to allege in
the charge sheet that the state intended relying
on common purpose
was prejudicial to the appellants and as such rendered the trial
unfair. It is my view that on this point alone
the convictions ought
to be set aside.it follows that the sentences cannot remain. I would
accordingly propose the following orders.
ORDERS
1.
The appeals by the three appellants are
upheld.
2.
The convictions and the sentences of the
three appellants are hereby set aside.
____________________
P.E.
MOLITSOANE, J
I
agree and it is so ordered.
______________
C
Van Zyl , J
On
behalf of appellant: Ms L Molise
Instructed
by:
Legal
Aid, South Africa
Bloemfontein
On
behalf of the respondent: Adv. Bontes
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
[1]
R v Saqwashula
1930 AD 437
[2]
2012(1) SACR 335 (KZP) ; See also Sv Rathumbu 2012(2) SACR 219(SCA).
[3]
1959(1) SA 646 (SCC) at 656F
[4]
1963(3)SA
462(T) at 464
[5]
2003(1) SARC 364(W)
[6]
(698/2017)[2017] ZASCA 181 (01 Dec 2017)
[7]
1989(1)SA687(A)
at 705I-706B
[8]
1993(1)SA 777(A) at 810G
[9]
See Thebus and Another v
S 2003
10
BCLR1100 at par [22]
[10]
S88
of Act 51 of 1977 provides that: “Where a charge is
defective for the want of an averment which is an essential
ingredient
of the relevant offence, the defect shall, unless brought
to the notice of the court before judgment, be cured by evidence at
the trial proving the matter which should have been averred.”-
[11]
Page 14-25