Brief Summary

Criminal Law — Appeal — Conviction and sentence — Appellants convicted of multiple counts including murder and robbery — Appellants appealed against convictions and sentences imposed by trial court — Evidence included eyewitness identification and forensic links to the crimes — Court found that the trial court properly evaluated the evidence and the convictions were upheld.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned a criminal appeal to the High Court of South Africa, Free State Division, Bloemfontein, against convictions and sentences imposed by the trial court (a single judge of the same division). The appeal was heard by Musi JP, Loubser J, and Moeng AJ.

The appellants were Mohlalefang Cyril Mokoena (Accused 1), Lehlohonolo Phillip Moloi (Accused 5), and Moeketsi Elliot Radebe (Accused 6). The respondent was the State. Leave to appeal was granted by the trial court.

The dispute concerned whether the State had proved the guilt of each appellant beyond reasonable doubt, largely through a combination of identification evidence, cellphone call-data evidence, possession and recovery of stolen property/keys, and (in relation to Accused 6) an alleged statement placing him on the scene. The appeal also raised an important issue regarding the competence of an order directing partial concurrency between a determinate sentence and a life sentence, in light of the Correctional Services Act 111 of 1998.

Accused 1 had been convicted of three counts of murder, three counts of robbery with aggravating circumstances, and one count of attempted murder, receiving three life sentences plus 55 years’ imprisonment, with the trial court ordering 25 years of the determinate term to run concurrently with the life sentences. Accused 5 had been convicted of murder, robbery with aggravating circumstances, and attempted murder, and sentenced to an effective 21 years’ imprisonment. Accused 6 had been convicted of two counts of murder and two counts of robbery with aggravating circumstances, and sentenced to an effective 24 years’ imprisonment.

2. Material Facts

The court considered multiple incidents occurring in 2009 in and around Qwa-Qwa/Phuthaditjhaba, involving violent attacks, killings, and the taking of property. A significant portion of the State’s case depended on circumstantial links between accused persons, recovered items, and cellphone activity.

On 9 May 2009 at approximately 22h00, Mr Lehlohonolo David Ramaditse was sitting in his car at De Bult, Qwa-Qwa, with Tshepiso Radebe. Two men approached the vehicle. One (described as “fat”) requested a lift to Phuthaditjhaba; after refusal, the other shot Mr Ramaditse three times and Tshepiso once. The assailants got into the vehicle and forced Mr Ramaditse to sit between the front seats while one drove. Mr Ramaditse later escaped while shots were fired; he returned to find Tshepiso dead. His JVC car radio was stolen and was later shown to him by police on 21 July 2009, when he identified it as his property.

A material disputed fact at trial (and relevant on appeal) was the identity of the “fat” assailant. Mr Ramaditse identified Accused 1 as that person, stating he had sufficient opportunity to observe him, assisted by the car’s interior light and a nearby mast light. The post-mortem confirmed Tshepiso’s death was caused by a gunshot resulting in a fractured skull.

A separate incident occurred on 12 June 2009 late at night. Mr Chami Japhta Mokoena left Lerato Kaloi in his Volkswagen Golf near De Bult Jazz Club. After being notified that the battery had been tampered with, he discovered the car missing. He later saw the vehicle involved in a collision near Riaholo school, and it was taken to the police station. On 14 June 2009, he identified a set of keys recovered in relation to this incident as belonging to him (including car keys and other keys).

In connection with that collision scene, Constable Zwane testified that he saw Lerato in the Golf and that she was deceased with a neck wound. Importantly, an LG cellular phone in the vehicle rang; he answered, and the caller asked where “Mahlalefane” was. Zwane later heard that a person named Mahlalefane had been arrested, being Accused 1. The post-mortem indicated Lerato died from a cervical spine fracture caused by a gunshot, with a severed vein.

Further evidence related to the murder of Mr Isaac Mokoena. Matshosane Ntsane, an employee of Isaac Mokoena, described that on 12 June 2009 he and the deceased arrived at Bodibeng sports bar with Lerato; after Ntsane went to close the business, the deceased’s BMW disappeared. Ntsane phoned the deceased, but someone answered claiming the deceased was asleep. The next morning, Ntsane saw the deceased’s corpse at Riaholo school.

Sergeant Mthimkhulu testified that on the morning of 13 January 2009 he discovered a BMW bumper and the corpse of Mr Mokoena with a gunshot wound through one eye at Riaholo school. It was common cause that the BMW was later found burned.

Evidence also dealt with the movement of stolen property. Inspector Sibeko testified that he had left his combi with his brother-in-law, Mr Motloung, without a radio installed. On 9 June 2009, he found the combi at Accused 2’s house with a radio installed; Motloung confirmed he had given the combi to Accused 2 for conveying passengers. Mr Khuthatso Molefe testified he saw Accused 1 and Accused 2 at Makeneng Tavern in that combi on 8 June 2009.

Regarding recovered property linked to the deceased Isaac Mokoena, Ms Mokoena (the deceased’s wife) identified keys and a cellphone as her husband’s property when shown them by Captain Moshoadiba on 7 October 2009; it was common cause that the cellphone was retrieved from Accused 3’s brother.

The State also relied on cellphone call-data analysis presented by Inspector Bierman. The evidence established communication patterns between phones associated with accused persons and a phone attributed to the deceased (Mr Mokoena), including calls made after the deceased’s death. It was also material that the LG phone found in the Volkswagen Golf was used with Accused 1’s SIM card.

A key factual development concerned searches and recoveries on 17 June 2009. Captain Kobane testified that Accused 1 took police to Accused 2’s house, and later to premises associated with Accused 6. A search of a second house on those premises led to the discovery of keys linked to vehicles, including a BMW key and a Citi Golf key, among other keys.

A further material fact concerned a statement allegedly made by Accused 6 to Captain Moshoadiba on 19 June 2009, in which Accused 6 placed himself with Accused 1 and another person, described events involving a black Golf with a woman believed asleep who was then discovered dead after an accident near a BP, and later described travelling in a damaged silver BMW and setting it alight, with a shot fired at the vehicle.

Accused 1’s defence was that he lived in Gauteng and had travelled to Qwa-Qwa on 12 June 2009, that he had lent his phone to a friend over Easter, and that he had lent his phone to Lerato because her phone battery was flat. His mother and brother testified in support of his movements (arrival home that afternoon, leaving in the evening, returning at midnight). The trial court rejected this version as not reasonably possibly true, and this rejection formed part of the appeal record.

3. Legal Issues

The central questions were whether each appellant’s convictions were supported by evidence meeting the standard of proof beyond reasonable doubt, and in particular whether the trial court correctly assessed circumstantial evidence and drew permissible inferences.

In relation to Accused 5, the dispute primarily concerned the application of law to fact: whether the pattern, timing, and frequency of cellphone calls between Accused 1 and Accused 5 could, as a matter of inferential reasoning, sustain the conclusion that Accused 5 participated in the relevant crimes as the only reasonable inference.

In relation to Accused 6, the issues concerned both fact (whether the statement to Captain Moshoadiba was made and what weight it carried) and the application of legal principles governing the consequences of an accused person’s silence in the face of evidence calling for an answer.

In relation to Accused 1, the appeal raised issues of fact (the reliability of the identification by Mr Ramaditse and the credibility of Accused 1’s version about his phone) and the application of legal standards governing the evaluation of competing versions and the drawing of inferences from proved facts.

A further legal issue (principally concerning sentence administration and competence of orders) was whether the trial court could competently order that part of a determinate term of imprisonment run concurrently with a life sentence, given the statutory scheme in section 39 of the Correctional Services Act 111 of 1998.

4. Court’s Reasoning

The appeal court reiterated as trite that the State must prove guilt beyond reasonable doubt, and that this assessment requires weighing the totality of the evidence. Where doubt remains after evaluating the entire body of evidence, the accused must receive the benefit of that doubt.

Because significant portions of the case against some appellants were based on circumstantial evidence, the court applied the two logical principles articulated in R v Blom 1939 AD 188, namely that the inference sought must be consistent with all proved facts, and that the proved facts must exclude every reasonable inference except the one sought to be drawn. The court explained this as a process requiring firmly established base facts, followed by inferential reasoning to a main fact (guilt), and emphasised that guilt must be the only reasonable inference.

Applying those principles to Accused 5, the court accepted that the base facts included calls between Accused 1 and Accused 5 before, after, and on 9 May 2009, including several calls around the time Mr Ramaditse estimated the attack occurred. However, the court found that those facts did not logically and exclusively establish Accused 5’s involvement as the only reasonable inference. The court pointed to several considerations drawn from the record: the apparent oddity of Accused 1 phoning Accused 5 at times when (on the State’s case) they would have been together at the scene; the fact that the stolen radio ended up in Sibeko’s combi through Accused 2, without an explanation of how Accused 2 obtained it; Accused 5’s evidence that he and Accused 1 spoke regularly about various topics; the inclusion of voicemail instances in the call records without clarity on how many calls were actual conversations; and the absence of evidence placing Accused 5’s location at the times of the calls. On this reasoning, the court held that the inferential link was too weak, and that other reasonable explanations remained, meaning that guilt could not be inferred beyond reasonable doubt.

In relation to Accused 6, the court relied on evidence that placed him on the scene and connected him to stolen goods, including the recovery of vehicle keys at premises where he stayed and the content of the statement attributed to him by Captain Moshoadiba. The court also considered that Accused 6 did not testify, and it invoked the principle described in S v Boesak 2001 (1) SACR 1 (CC) that although an accused is not obliged to testify, remaining silent in the face of evidence calling for an answer may permit a court to conclude that the evidence is sufficient in the absence of an explanation, depending on its weight. The court stated that Accused 6 had to face the consequences of his silence and concluded that the trial court’s approach to this was correct. On that basis, the appeal court upheld Accused 6’s convictions and sentence.

In relation to Accused 1, the court found no basis to fault the trial court’s evaluation. It accepted that Accused 1 had been positively identified by Mr Ramaditse, that Accused 1 had pointed out the house where the Golf and BMW keys were found, and that the evidence undermined Accused 1’s explanation for how his LG phone and SIM card were connected to the vehicle. The appeal court endorsed the trial court’s rejection of Accused 1’s version as not reasonably possibly true, including the finding that his evidence was inconsistent with probabilities and proven facts. It accordingly dismissed Accused 1’s appeal against conviction and sentence.

On sentence, the court accepted that the offences were extremely serious, involving cold-blooded murders and serious violence. It noted that counsel for the appellants conceded there was no basis to interfere with sentence, and it held that the trial court had considered relevant factors without misdirection and that the sentences were not shockingly inappropriate.

However, the court identified a discrete legal error in the trial court’s order regarding partial concurrency for Accused 1. It held that the issue was definitively governed by section 39 of the Correctional Services Act 111 of 1998, which provides (as emphasised by the appeal court) that any determinate sentence runs concurrently with a life sentence. The appeal court regarded the trial court’s order that 25 years of the additional 55 years should run concurrently as contrary to the statutory prescripts and therefore incompetent. In support of this statutory interpretation, the court referred to S v Mashava 2014 (1) SACR 541 (SCA), which stated that determinate imprisonment imposed in addition to life imprisonment is subsumed by the life sentence, because a person has only one life.

5. Outcome and Relief

The appeal by Accused 5 against both convictions and sentence succeeded. His convictions and sentence were set aside.

The appeals by Accused 1 and Accused 6 against their convictions and sentences were dismissed.

In relation to Accused 1, the appeal court set aside the trial court’s order directing that 25 years of the determinate sentence run concurrently with the life sentence, on the basis that concurrency between determinate imprisonment and life imprisonment is governed by statute and the impugned order was incompetent.

The judgment did not record any order as to costs.

Cases Cited

R v Blom 1939 AD 188.

S v Boesak 2001 (1) SACR 1 (CC).

S v Makhoka [2019] ZACC 19.

S v Mashava 2014 (1) SACR 541 (SCA).

Legislation Cited

Correctional Services Act 111 of 1998, section 39(1) and section 39(2)(a)(i) and (ii).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the circumstantial evidence implicating Accused 5, consisting primarily of cellphone call patterns with Accused 1, did not satisfy the inferential requirements for proof beyond reasonable doubt because it did not exclude other reasonable inferences and did not establish guilt as the only reasonable inference.

The court held that the convictions of Accused 6 were supported by evidence placing him on the scene and connecting him to recovered items, and that in the face of evidence calling for an answer, his decision not to testify attracted adverse consequences consistent with the applicable principle concerning silence.

The court held that the convictions and sentences of Accused 1 were sound, relying on the reliability of the identification evidence, the pointing-out of premises where keys were found, and the rejection of Accused 1’s version as not reasonably possibly true.

The court held that the trial court’s partial concurrency order in respect of Accused 1 was incompetent because section 39 of the Correctional Services Act 111 of 1998 governs the relationship between determinate sentences and life sentences, with determinate imprisonment running concurrently with life imprisonment by operation of law.

LEGAL PRINCIPLES

The judgment applied the principle that the State must prove guilt beyond reasonable doubt, assessed on the totality of the evidence, and that any residual reasonable doubt must benefit the accused.

Where guilt is sought to be established through circumstantial evidence, the court applied the inferential rules in R v Blom 1939 AD 188, requiring that the inference be consistent with all proved facts and that the proved facts exclude every reasonable inference other than guilt. The judgment articulated this through the distinction between firmly established base facts and the main fact inferred (guilt), requiring the inferential step to be logically compelling and exclusive of other reasonable hypotheses.

The judgment applied the principle (as described in S v Boesak 2001 (1) SACR 1 (CC)) that while an accused is not obliged to testify, a failure to answer evidence calling for an explanation may permit the conclusion that the evidence is sufficient to prove guilt, depending on the weight of that evidence.

On sentencing administration and the competence of concurrency orders, the judgment applied section 39 of the Correctional Services Act 111 of 1998, holding that determinate imprisonment imposed in addition to a life sentence runs concurrently with the life sentence by operation of law, and that a court order purporting to direct partial concurrency contrary to this statutory scheme is incompetent. The judgment relied on S v Mashava 2014 (1) SACR 541 (SCA) for the proposition that determinate imprisonment is subsumed by life imprisonment in this context.

Mokoena and Others v S (A201/2017) [2019] ZAFSHC 270 (31 May 2019)