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[2019] ZAFSHC 13
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Piyana v S (A236/2018) [2019] ZAFSHC 13 (18 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: A236/2018
In
the matter between:
ZIMISELE
ELLIA
PIYANA
Appellant
and
THE
STATE
Respondent
CORAM:
DAFFUE, J
et
MATHEBULA,
J
JUDGMENT
BY:
DAFFUE, J
HEARD
ON:
18 FEBRUARY 2019
DELIVERED ON:
18 FEBRUARY 2019
INTRODUCTION
[1]
On 29 March 2017 the appellant was convicted on a charge of murder in
the Regional Court, Bloemfontein and sentenced to ten
years’
imprisonment. On 12 May 2017 the trial court granted leave to
appeal the conviction. The conviction is
not supported by Adv M
Strauss who appeared for the State before us in the appeal.
THE
GROUNDS OF APPEAL
[2]
Several grounds of appeal are relied upon, but the more relevant are
that the trial court erred in finding that the:
(1) version of appellant
was improbable;
(2) the knife was handed
over by appellant to constable Mokoena whilst the discovery thereof
was not explained on appellant’s
version;
(3) the inference drawn
that appellant stabbed and killed the deceased is not the only
reasonable inference that could be drawn
from the proven facts.
THE
JUDGMENT OF THE COURT
A QUO
[3]
The trial court acknowledged that there was no direct evidence
linking appellant with the murder and that the matter had to
be
adjudicated based on circumstantial evidence.
[4]
The trial court accepted that appellant was inside the white Mercedes
Benz truck of Anton le Roux Vervoer, behind the driver
and
co-driver’s seats – the area providing for a bed as is
apparent from photo 3 of exhibit A – when constable
LA Mokoena
and Mr Serai Samuel Motlhacwi, an employee at the particular truck
stop, arrived at the truck.
[5]
The trial court found that both State witnesses testified that
appellant handed a knife to the constable and that their version
is
corroborated by a photograph of the knife depicted on photo 9 of
annexure A. The trial court referred to appellant’s
version, denying that he had seen or handled a knife and therefore
that he handed over a knife as testified by the State witnesses
and
held that there was no reason for the two State witnesses to give
false evidence as
“
I did not get the
impression that they were having a bone to pick with the accused.”
[6]
The trial court accepted there was a lapse of time between Mr
Motlhacwi’s first and second visits to the truck, but this
was
not considered relevant at all. I must mention that Mr
Motlhacwi received a report from a person referred to as Mr Roets
which caused him to go the truck. This was between 18:00
and18:45. He saw blood dripping from the truck onto the ground,
an obviously injured driver sitting behind the steering wheel with
his head leaning against the window, as well as an unidentified
person on the bed behind the seats. He left the scene, phoned
an ambulance and the police and reported to a co-worker, Mr
Tola.
The truck was left unattended and no immediate medical attention was
provided by anyone. They attended the scene
again after arrival
of members of SAPS. On constable Mokoena’s version, that
must have been at or past 21:00; therefore
more than two hours since
Mr Motlhacwi’s discovery.
[7]
The trial court held that appellant’s version of the events,
i.e.
that he entered
the truck whilst noticing the seriously injured driver was
“
a
bit improbable.”
Although not stated
as such, it must be accepted that the trial court rejected
appellant’s version that he entered the truck,
tried to
ascertain the deceased condition, took his cellphone in order to call
his employer and as he was on the verge of alighting
the truck, the
police arrived. It proceeded to hold that when the police
arrived there were only two people in the truck
- the driver and
appellant on the bed behind the seat - that appellant handed the
knife to the police and consequently, appellant
was the person that
stabbed and killed the deceased with the necessary intention.
APPLICATION
OF LEGAL PRINCIPLES IN EVALUATING THE TRIAL COURT’S JUDGMENT
[8]
Although not a ground of appeal, I am of the view that the appeal
should succeed solely based on the material irregularity that
has
occurred during the trial. This court has a duty to ascertain
whether appellant had a fair trial. Appellant’s
attorney
was never given an opportunity to cross-examine constable Mokoena
before the close of the State’s case and dismissal
of the
application for appellant’s discharge in terms of s 174 of the
Criminal Procedure Act, 51 of 1977 (“the CPA”).
In
fact, this witness was called back after closure of the defence’s
case and once deliberations between the legal representatives
and the
presiding officer had taken place about the correct procedure.
Notwithstanding appellant’s clear instructions
to his attorney
as is evident from the cross-examination of Mr Motlhacwi, the
attorney failed to properly cross-examine and/or
to put his client’s
version to the constable. Notwithstanding the ruling in the
trial within a trial, the trial court
allowed the constable to again
testify about an admission by appellant. Although extracted
this time during cross-examination,
this should never have been
allowed. The trial court should not have allowed the reopening
of the State’s case in the
circumstances. Appellant’s
attorney was totally flabbergasted and apparently out of his depth.
He failed to meaningfully
cross-examine the constable. A
crucial issue in this regard is the fact that the trial court allowed
the prosecutor to put
it to appellant that his attorney had failed to
put it to the constable that he (appellant) said that he did not know
what happened,
whilst the attorney by that time did not even had an
opportunity to cross-examine the constable. This must have
confused
the appellant who was confronted with a wrong statement by
the prosecutor which the trial court should not have allowed.
[9]
There is no inflexible rule pertaining to the reopening of the
State’s case. Most of the authorities deal with reopening
to allow the State to present new evidence, but I could not find any
authority justifying reopening of the State’s case after
closure of the defence case in order for a State witness which should
have been cross-examined, to be cross-examined. Each
case must
be considered on its particular facts. In my view an
irregularity such as what occurred
in casu
could not be remedied under the circumstances. Reopening may be
allowed if no injustice will be caused to an accused.
S
v Felthun
1999 (1) SACR 481
(SCA) may be seen
as a case in point. A pharmacist was called by the State
after closure of both the State and the
defence’s cases in
order to testify as to exactly when the deceased visited his pharmacy
on the day he was killed.
This witness did not originally
testify. His evidence indicated that the time on the printout
of an invoice given to the
deceased was inaccurate by some ten
minutes, indicating that the deceased left the pharmacy earlier than
previously admitted. The
Court of Appeal accepted that no unfairness
took place during the hearing and that the reopening of the State’s
case was
not an irregularity.
In casu
there would be no irregularity if the State’s case was
re-opened before appellant testified. Appellant’s
attorney
had a right to cross-examine the constable. The record
clearly shows the improper appreciation by the appellant’s
attorney
of his duty to belatedly cross-examine the constable as he
did not know how to deal with an issue which should not have been
allowed
in the first place. At that stage the trial court had already
made a ruling in terms of s 174 of the CPA to the effect that there
was
“
indeed substantial evidence that was
put before the court.”
The most
crucial evidence relied upon was by then not even subjected to
cross-examination. Even if my viewpoint is incorrect,
there are
further reasons why the appeal should succeed. I deal with those in
the next paragraphs.
[10]
When an appeal is lodged against a court
a
quo
’s findings of fact, the appeal
court should take into account that the court
a
quo
was in a more favourable position than
itself to form a judgment because it was able to observe the
witnesses during their questioning
and was absorbed in the atmosphere
of the trial. See Schmidt and Rademeyer,
Law
of Evidence
3-40. The appeal court will
normally accept factual findings made by the court
a
quo,
unless there is some indication that a
mistake was made. See
R v Dhlumayo
1948 (2) SA 677
(A) at 696 and 705. The Court of Appeal
summarised this issue as follows in
S v Hadebe
and Others
1997 (2) SACR 641
(SCA) at 645e -
f:
“
Before considering these
submissions it would be as well to recall yet again that there are
well-established principles governing
the hearing of appeals against
findings of fact. In short, in the absence of demonstrable and
material misdirection by the
trial Court, its findings of fact are
presumed to be correct and will only be disregarded if the recorded
evidence shows them to
be clearly wrong.”
[11]
The presumption is that the trial court’s conclusion on the
facts is correct. The appeal court will only reverse it where
it is
convinced that such conclusion is wrong. In such a case, if the
appeal court is merely left in doubt as to the correctness
of the
conclusion, it will uphold it. The Supreme Court of Appeal in
S
v Naidoo and Others
2003 (1) SACR 347
(SCA)
in paragraph [26] reiterated this principle as follows:
‘
In the final analysis, a court
of appeal does not overturn a trial court’s findings of fact
unless they are shown to be vitiated
by material misdirection or are
shown by the record to be wrong.’
[12]
No judgment is perfect and the fact that certain issues were not
referred to does not necessarily mean that these were overlooked.
It is accepted that factual errors do appear from time to time, that
reasons provided by a court
a quo
are unsatisfactory or that certain facts or improbabilities are
overlooked. The appeal court should be hesitant to search
for
reasons that are in conflict with or adverse to the trial court’s
factual findings. However, in order to prevent
a convicted
person’s right of appeal to be illusionary, the appeal court
has a duty to investigate the trial court’s
factual findings in
order to ascertain their correctness and if a mistake has been made
to the extent that the conviction cannot
be upheld, it must
interfere. See
S v M
2006 (1) SACR 135
(SCA) at paragraph [40].
[13]
To secure a conviction the State had to prove all the elements of the
crimes beyond reasonable doubt. The test in a criminal
case has been
restated in
S v V
2000
(1) SACR 453
(SCA) at paragraph [3]. If there is a reasonable
possibility that the accused is not guilty, he should be acquitted.
The
accused should be convicted if the court finds not only that his
version is improbable, but also that it is false beyond reasonable
doubt. It is not necessary for the court to believe an accused person
in order to acquit him.
[14]
The State has to prove its case against an accused beyond reasonable
doubt, but in evaluating the evidence, the trial court
is entitled to
consider the probabilities and improbabilities. This issue was
considered in S v Chabalala
2003 (1) SACR 134
SCA in paragraph [15]
where Heher AJA (as he then was) held:
“
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
also:
S v Trainor
2003
(1) SACR 35
(SCA) at 41b – c.
[15]
The test when considering circumstantial evidence has been
authoritatively stated in
R v Blom
1939 AD 188
at 202 – 203. Firstly, the inference sought
to be drawn must be consistent with all the proved facts. If it
is
not, the inference cannot be drawn. Secondly, the proved
facts should be such that it excludes 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. The two rules referred
to above are known as the cardinal rules of logic
to be applied when
no direct evidence of an offence is available. An example of
the cumulative effect of all the evidence
pointing to the guilt of
the accused is to be found in
S v Reddy
1996
(2) SACR 1
(A) at 8.
[16]
An accused’s version cannot be rejected merely because it
appears to be improbable. It must be shown, in light of the
totality
of the facts, to be so untenable and/or improbable and/or false that
it cannot reasonably possibly be true. See S v Schackell
2001 (2)
SACR 185
(SCA) at para [30] and
S v V
supra
.
[17]
Plasket, J in emphasised the following in
S v
T
2005 (2) SACR 318
(E) in paragraph [37],
recently approved by the SCA in
S v Phetoe
2018 (1) SACR 593
(SCA) in paragraph [21]. The State is
required to prove the guilt of the accused beyond a reasonable
doubt. This high
standard is a core component of the
fundamental right to a fair trial as enshrined in the Constitution.
If the guilt is not
proven beyond reasonable doubt, the accused is
entitled to an acquittal, even if there may be suspicions that he was
indeed the
perpetrator. The inverse - convictions based on
suspicion or speculation - is the hallmark of a tyrannical system of
law.
[18]
Although it is possible that the trial court considered other
probabilities or improbabilities without expressly referring
thereto
in the judgment, there are several improbabilities that come to mind
and which have not been dealt with
ex facie
the judgment. If appellant killed the deceased, he would in all
probabilities not remain on the crime scene in excess of
two hours.
This is contrary to human nature: criminals do not remain on crime
scenes, especially not in a parking lot frequented
by many people and
after a member of the public has already visited the crime scene and
would have detected a seriously injured
person. No blood was
found on appellant which is improbable bearing in mind the amount of
blood spilled all over the cab
of the truck. If the netting between
the seats and the bed is considered, it is highly improbable that
someone would be able to
inflict wounds to the deceased’s upper
body and neck from behind the driver’s seat. The person
inflicting the
wounds must have executed his actions from the
passenger seat. One would have expected appellant, if he killed
the deceased
and wanted to remain on the scene, to raise an alarm,
explaining that he went to wash and/or to buy goods and on his return
to
the truck he found the injured driver.
[19]
Although appellant’s reaction upon finding the seriously
injured or deceased driver appears improbable, exactly the same
observation applies to the reaction of Mr Motlhacwi who did not even
arrange for immediate medical care which would arguably be
the most
logical thing to do. Appellant’s version could not be
rejected as false. It must be remembered that
appellant is a
Xhosa speaker whilst constable Mokoena speaks Sesotho. Although
the alleged admission was not allowed, it
is apparent that a
misunderstanding between the two persons cannot be excluded.
[20]
It remains a mystery why the State failed to call Mr Roets, or even
Mr Tola. Apparently, Mr Roets must have been in possession
of
crucial evidence if Mr Motlhacwi can be believed. The time
difference between Mr Motlhacwi’s first observation and
the
time when constable Mokoena arrived is crucial as so much could have
transpired in between. There is no evidence that
appellant was
inside the cab of the truck the first time. No blood was
detected on appellant which is irreconcilable with
the objective
facts and it is improbable that he could be the attacker, unless he
had an opportunity to wash himself and change
clothes. Mr
Motlhacwi could not say whether the knife in the photo-album is the
one handed over. There is no evidence
as to where the photo of
the knife was taken and save for constable Mokoena’s single
evidence, that this knife was indeed
the knife handed over.
Fact is that the constable only pointed out the truck to the
photographer and there is no evidence
that the constable handed over
and/or pointed out the particular knife to the photographer.
There is also no evidence that
the knife was indeed the murder weapon
as it was not subjected to DNA testing. More troublesome is the
fact that the knife
was not even handed in as an exhibit. The
State witnesses contradicted each other materially on the stage when
the knife
was allegedly handed over by appellant to the constable.
The constable could not say where in the cab the knife was before
it
was handed over to him.
[21]
Notwithstanding the
dictum
contained in
Reddy
supra
I am
convinced that the test to be applied for a finding on circumstantial
evidence has not been met. In order to dismiss
the appeal this
court will have to rely on suspicion and/or speculation.
Insofar as the trial court found in favour of the
State, it
incorrectly applied the test on circumstantial evidence. Even
if the trial court is correct in respect of
the
proved facts, which I do not agree with, such finding does not
exclude every reasonable inference from them, save the one sought
to
be drawn,
i.e.
that
appellant killed the deceased. If they do not exclude other
reasonable inferences, then there must be doubt whether
the inference
sought to be drawn is correct.
ORDERS
[22]
Consequently, the following orders are made:
(1) The appeal against
conviction succeeds.
(2) The order of the
trial court is set aside and substituted with the following:
“
The
accused is found not guilty and discharged.”
_______________
J
P DAFFUE, J
I
concur
________________
M A MATHEBULA, J
On
behalf of appellant: Mr L M THABALALA
Instructed
by:
JUSTICE
CENTRE
BLOEMFONTEIN
On
behalf of respondent: Adv M STRAUSS
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN