S v Mocke (609/07) [2008] ZASCA 80; [2008] 4 All SA 330 (SCA); 2008 (2) SACR 674 (SCA) (2 June 2008)

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[2008] ZASCA 80
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S v Mocke (609/07) [2008] ZASCA 80; [2008] 4 All SA 330 (SCA); 2008 (2) SACR 674 (SCA) (2 June 2008)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
REPORTABLE
CASE NO: 609/2007
In the matter between
ENRIQUE ABREY LENDOL MOCKE
...
APPELLANT
and
THE STATE
...
RESPONDENT
CORAM:
MTHIYANE, CLOETE JJA and MHLANTLA AJA
HEARD: 27 MAY 2008
DELIVERED: 2 JUNE 2008
Summary:
Accused convicted of murder by
regional magistrate on evidence of single witness – no reasons
given nor credibility findings made
by magistrate on evidence of
witnesses.
On appeal – this held to be misdirection entitling
appellate court to interfere and reassess evidence itself -
Conviction and sentence
set aside and replaced with one of being
accessory after fact to murder.
Sentence – two years of correctional supervision
imposed.
Costs – State ordered to pay wasted costs
occasioned by non-appearance of its representative on attorney and
client scale.
Neutral Citation: EAL Mocke v The State (609/2007)
[2008] ZASCA 80
(2 June 2008).
JUDGMENT
MTHIYANE JA
MTHIYANE JA:
Introduction
[1] The appellant was convicted in the Bellville Regional Court on a
charge of murder and sentenced to seven years’ imprisonment.
His
appeal to the Cape High Court with leave of the magistrate against
both the conviction and sentence failed. The appellant was
however
granted leave by the court
a quo
to appeal to this court
against both the conviction and sentence.
[2] The charge arose from an incident in Ravensmead on Saturday 6
April 2002. On the day in question Ms Maureen Adams (‘the
deceased’),
who lived and worked on the business premises of the
appellant’s father, Mr William John Mocke, was brutally killed. Her
‘common
law’ husband, Mr Joseph Marshall, lived with her on the
premises.
[3] The State alleged that it was the appellant who killed the
deceased by stabbing her with a knife or other sharp instrument and
by inflicting other acts of violence upon her. The State relied on
the evidence of a single witness, one Henry Daniels, a friend
of the
appellant, who, like him, was 16 years old at the time of the
incident. He testified that the appellant had killed the deceased
by
grabbing her by her arm and stabbing her several times around the
neck with a shining object or a pair of scissors. The appellant
denied these allegations and averred that it was Daniels who stabbed
and killed the deceased.
[4] The magistrate rejected the appellant’s version and accepted
the evidence of Daniels without giving reasons. In a one page
judgment he did not embark on any analysis of the evidence and made
no credibility findings on the evidence of the witnesses.
The Principles
[5] The approach which should have been adopted by the magistrate in
dealing with the conflicting versions of the appellant and Daniels
was articulated by Joubert AJA in a judgment of this court in
S v
Guess
1
‘
The magistrate obviously
misdirected himself in accepting Makapan’s evidence without stating
his reasons for believing him and without
stating his reasons for
disbelieving the appellant and Miss Brown. The correct approach which
the magistrate should have adopted
in weighing up the evidence of the
State and that of the defence appears from the
dicta
of the following two reported
cases:
(1)
Per
DE
VILLIERS, J.P., in
Schoonwinkel v. Swart’s
Trustee
,
1911 T.P.D. 397
at p. 401:
“
This Court, as a Court of appeal,
expects the court below not only to give its findings on the facts,
but also its reasons for those
findings. It is not sufficient for a
magistrate to say, ‘I believed
this
witness, and I did
not believe
that
witness’. The Court of
appeal expects the magistrate, when he finds that he cannot believe a
witness, to state his reasons why he
does not believe him. If the
reasons are, because of inherent improbabilities, or because of
contradictions in the evidence of the
witness, or because of his
being contradicted by more trustworthy witnesses, the Court expects
the magistrate to say so. If the reason
is the demeanour of the
witness, the Court expects the magistrate to say that; and
particularly in the latter case the Court will
not lightly upset he
magistrate’s finding on such a point”.
This
dictum
was
intended for a civil case but it is equally applicable to a criminal
case.
(2)
Per
LEON,
J., in
S v Singh
,
1975
(1) S.A. 227
(N) at p. 228:
“
Because this is not the first time
that one has been faced on appeal with this kind of situation, it
would perhaps be wise to repeat
once again how a court ought to
approach a criminal case on fact where there is a conflict of fact
between the evidence of the State
witnesses and that of an accused.
It is quite impermissible to approach such a case thus: because the
court is satisfied as to the
reliability and the creditably of the
State witnesses that, therefore, the defence witnesses, including the
accused must be rejected.
The proper approach in a case such as this
is for the court to apply its mind not only to the merits and
demerits of the State and
defence witnesses but also to the
probabilities of the case. It is only after so applying its mind that
a court would be justified
in reaching a conclusion as to whether the
guilt of an accused has been established beyond reasonable doubt. The
best indication
that a court has applied its mind in the proper
manner in the above-mentioned example is to be found in its reasons
for judgment
including its reasons for the acceptance and rejection
of the respective witnesses.”
Makapan’s evidence should be treated with
circumspection, since he left the appellant because he had not been
paid adequately. On
the probabilities of the case it is by no means
unlikely that he nurtured a grievance against the appellant.’
[6] Daniels was not only a single witness whose testimony had to be
clear and satisfactory in every material respect but he was also
implicated by the appellant in the murder. The reasonable possibility
of his involvement in the murder is beyond question. In my
view
Daniels should have been treated as an accomplice even though he was
not warned in terms of section 204 of the Criminal Procedure
Act 51
of 1977 (‘the Act’) at the trial. Support for this view is to be
found in
DT Zeffert, AP Paizes and A St Q Skeen in
The South African Law of Evidence
,
2
where the learned authors say the following:
‘
In some cases the term
“quasi-accomplices” has been used to describe persons who are not
technically accomplices but appear to
know a good deal about the
offence and have some purpose of their own to serve in giving
evidence. The reasons for the accomplice
rule apply equally to such
persons and similar circumspection ought therefore to be shown in
dealing with their evidence. The following
are examples of
quasi-accomplices: fellow members of an illegal organization
according to some decisions (but the Appellate Division
in
S
v Sauls & Others
refused
to treat a witness, who had played no part in the alleged crime, as
an accomplice, merely because he was a member of the same
illegal
prison organisation as the accused and, as such, under suspicion);
police informers, and persons borrowing money at usurious
rates of
interest. There is some dispute over whether in such cases the
cautionary rule applies as a requisite of procedural law
or whether
caution is simply dictated by commonsense; but the point is somewhat
academic since, as we have seen, the cautionary rule
is itself no
more than an admonition to use commonsense.’
[7] On the same theme Holmes JA expressed himself as follows in
S
v Malinga
:
3
‘
The Court
a
quo
treated
Mabaso as an accomplice and an informer. He was certainly an
informer. Whether in the circumstances he was
de
jure
an
accomplice I need not decide, for the trial Court’s view that he
was could only redound to the benefit of the accused. Whatever
the
juristic niche into which he may be classified as a witness, his
evidence had two things in common with that of an accomplice.
First,
he had a possible motive to benefit himself by false implication of
others, for he was an escaped indeterminate convict who
had agreed to
help the police to round up his confederates in crime. Second, by
reason of his participation in this crime he was
in a position in
Court to deceive the unwary by a realistic account of it, his only
fiction being the deceptive substitution of the
accused for the real
culprits, or the addition of one or more participants for good
measure. Hence the prudence of applying to his
testimony the
cautionary rule enunciated in
R.
v. Ncanana
, 1948
(4) S.A. (A.D.) at pp. 405/6 and
R.
v. Gumede
,
1949 (3)
S.A. 749
(A.D.).’
I am in agreement with the principles set out above.
[8] In the court
a quo
Motala J, with Zondi J concurring,
correctly found that the magistrate had misdirected himself and that
the court was accordingly
at large to reassess the evidence and
determine for itself whether on the evidence the guilt of the
appellant had been proved beyond
reasonable doubt.
[9] There are two further instances of misdirection alluded to by the
court
a quo
. Firstly the magistrate described the cause of
death as being several stab wounds in the deceased’s chest area
(‘verskeie steekwonde
in die borskasarea’) whereas the post
mortem report records that the stab wounds found on the deceased’s
body were concentrated
in the neck area and did not cause her death.
There it is recorded that the deceased died of chest injuries – an
obvious reference
to the multiple fracture of the ribs. Secondly, the
magistrate noted that the appellant’s DNA profile could be read
into the results
of the analysis of two cigarette stubs found at the
scene whereas the generic material found on one of the butts was
definitely not
from the appellant and no generic material could be
retrieved from the other butt.
The Evidence
[10] Daniels told the court that he and the appellant were good
friends. On the day of the incident he was fetched by the appellant
and the appellant’s cousin, Mr Ashley Stephanus in a ‘bakkie’.
They went to a shebeen in 16
th
Avenue Ravensmead where
they drank liquor until they had no money left. The appellant
suggested that they go to the business premises
of appellant’s
father to make certain telephone calls to ask for money for more
beer. The three of them and two others went there.
Upon their arrival
Daniels remained seated on the bakkie. The appellant jumped over a
fence which surrounded the premises and went
to fetch the keys to a
gate and to the office in the building. All five of them entered the
building, but at some stage the other
three went out again. Daniels
telephoned his mother and the appellant, his father. Daniels then
went out and joined the others on
the bakkie. He then saw the
appellant coming out carrying a telefax machine. Daniels and the
others objected to what the appellant
was doing. Daniels and
appellant then returned to the building leaving the telefax machine
on the bakkie. Ashley, however, took it
from the bakkie and passed it
over to Wayne who was already on the other side of the fence to
receive it.
[11] As the fax machine was being passed over the deceased appeared
and enquired what it was that was being passed over. She then
threatened to report to appellant’s father that he was bringing
unknown persons to the premises. She said she had seen the telefax
machine being passed over the fence and said she was going to report
the matter to the appellant’s elder brother, William. The
appellant
and Daniels pleaded with her not to report the incident. She agreed
on condition that they re-plugged the telefax machine
in its place.
Daniels did so. The deceased then noticed that a drill stand had been
moved from its usual location. She now resolved
to report what was
happening to William as things had then got out of hand.
[12] While she was busy sweeping the floor Daniels says he saw the
appellant grabbing the deceased by her arm and stabbing her. The
appellant shouted at him to also stab the deceased but Daniels ran
out and went to sit outside on a box. By then their three companions
had driven away in the bakkie. The appellant remained inside for some
time while Daniels was seated outside. Marshall arrived and
asked
where the deceased was but Daniels said he did not know. Marshall
then went to the building where the appellant told him that
the
deceased had gone to the shops. A short while thereafter the
appellant came out of the building and he and Daniels then ran away.
On the way, appellant told Daniels that he had stabbed the deceased
and did not have long to live. He showed Daniels certain marks
on his
arm and claimed he had been scratched by the deceased. Daniels
noticed that the appellant’s trousers were blood-stained.
[13] About a week later, the appellant told him that he had exchanged
his trousers with his cousin. He had with him a bag containing
a
blood-soaked sweater which he later burnt in the presence of Daniels.
[14] Testifying in his defence the appellant told the court that he
had earlier that morning been drinking at Ashley’s home and
not at
the shebeen in 16
th
Avenue as alleged by Daniels. His
version on this point was confirmed by Ashley. The appellant agreed
with Daniels that he and the
others went to his father’s business
premises to use the telephone. He said Daniels phoned a few girl
friends and he had phoned
his father who declined to provide any
money. According to him it was Daniels who suggested that power tools
on the premises be taken
to be pawned. The appellant considered the
drill stand to be too bulky and did not think that it would be a good
idea to remove it.
[15] Daniels then disconnected the telefax machine. Although he did
not think that it was a good idea he nevertheless agreed to go
along
with the idea that it being removed and sold so that they could get
money to buy beer. The appellant confirmed Daniels’s
version that
the telefax machine was returned after the deceased scolded them and
threatened to report the incident to the appellant’s
brother,
William. He also confirmed that she agreed not to report the incident
after the fax machine was returned. He also agreed
with Daniels that
when the deceased noticed that the drill stand had been removed from
its place she resolved to report the incident
to the appellant’s
father.
[16] It was then that Daniels told the appellant that he was going to
stab the deceased. The appellant thought that Daniels was joking.
Daniels then passed a pair of scissors to him, and armed himself with
a broken spear. Daniels later returned the pair of scissors.
The
appellant then heard a sound, like a head hitting the ground and the
sound of someone struggling to speak. He went outside and
saw Daniels
sitting on top of the deceased. He pulled Daniels off. Daniels then
said “
ek [i.e. appellant] moet iets vir die bloed kry”
.
The appellant then removed his t-shirt and threw it to Daniels who
wiped his hands with it. He took his t-shirt back and felt the
deceased’s neck to see if she was still alive. He then went to the
bathroom and washed his hands. He threw water on his bloody
footprints. He hid his t-shirt in a disused toilet. He and Daniels
then ran away. Along the way, Daniels handed him a pair of scissors
which he threw away. A month or two later, he retrieved his t-shirt
and he and Daniels burnt it.’
[17] The trial court was confronted with these two conflicting
versions. There is very little to choose between them. Neither was
an
impressive witness. Both lied about the crucial aspects of the
incident and both had equal motive to kill the deceased and to
distance themselves from the incident.
Discussion
[18] The onus was on the State to prove the guilt of the appellant
beyond reasonable doubt. As already indicated it relied on Daniels
who was a single witness and whose evidence had to be treated with
caution. The court
a quo
found that he lied about the reason
for going to the premises. It also found that there were
discrepancies between what he said in
court and his statement to the
police. Daniels had intimate knowledge of what had happened at the
scene of crime and he, like the
appellant, was in danger of being
reported to the appellant’s father. He lied to Marshall as to the
deceased’s whereabouts. Daniels
admitted that at one stage he had a
broken spear in his hand. He claimed that he had it when he was
outside. There is to my mind
more than a reasonable possibility of
his involvement in the murder. Before the deceased was killed on his
own admission he was carrying
a broken spear; he can’t explain why.
He lied to the deceased’s husband, Marshall, when the latter asked
where his wife was.
He fled from the scene together with the
appellant and offers no explanation for it.
[19] It seems to me that the court
a quo
unwittingly fell into
the same trap as the trial court of expressing a preference for a
version that could not bear scrutiny. Having
come to the conclusion
that the evidence of Daniels had to be treated with a high degree of
caution, the court
a quo
went on to look for factors which it
considered would lessen the risk of relying on the evidence of
Daniels. The factors the court
found were the appellant’s evidence
relating to the t-shirt: the fact that he handed it over to Daniels
to wipe his hands, that
it was blood-soaked, that he had wiped off
his footprints with it, that he hid the t-shirt and subsequently
burned it in the presence
of Daniels, that before leaving the scene
the appellant had thrown water on his bloody footprints. All of the
above factors were
considered to be irreconcilable with the
appellant’s innocence.
[20] A further factor which the court
a quo
considered as
providing some guarantee that Daniels was telling the truth was
confirmation by Marshall that when he returned, Daniels
was sitting
outside while the appellant remained inside the building.
[21] The court concluded that on all of the above factors, especially
the fact that the appellant’s t-shirt was soaked in blood,
is that
the appellant was involved in the assault on the deceased, either
alone or together with Daniels. It dismissed appellant’s
version
that he had handed the t-shirt to Daniels to wipe his hands with it
as ‘absurd’. As contended by counsel for the appellant
this piece
of evidence might be suspicious but to dismiss it as absurd is taking
the matter too far. The confirmation by Marshall
that Daniels was
sitting outside at some stage does not take the matter any further.
In any event it is an aspect that is common
cause. It will be
recalled that it was the appellant’s case that after the assault
there was a stage when Daniels went out. It
is in any event
conceivable that there would have been blood on the appellant’s
t-shirt if, as he says, he at some stage had to
pull Daniels off the
deceased.
[22] The main focus of the court
a quo
was the evidence of
Daniels and the appellant.
[23] The finding of the court that Daniels was possibly involved must
of necessity imply a finding that his denial in the witness
box of
any involvement was a blatant lie. Although the appellant appears
from the record not to have been a particularly impressive
witness,
he was not shown to be a liar and his shortcomings do not in any way
supplement the deficiencies in the State case.
[24] It was conceded on the appellant’s behalf that on his own
version he had made himself guilty of being an accessory after the
fact. That is clear from the evidence relating to the burning of his
t-shirt, the wiping of the blood and that he lied to Marshall
as to
the whereabouts of the deceased. In my view the concession was
properly made. On all the evidence the appellant should have
been
convicted of being an accessory after the fact to murder.
Sentence
[25] I do not think that any purpose would be served by referring the
matter to the trial court for sentence. All the facts relevant
to
sentence are before us. There is in addition a report of the
probation officer who recommended that in the circumstances of this
case correctional supervision in terms in terms of section 276(1)(h)
of the Act would be a more appropriate sentence. Counsel for
the
appellant supported this recommendation. Counsel for the State also
conceded that if we were minded to substitute a conviction
of being
accessory after the fact to murder, the sentence of correctional
supervision proposed by the probation officer would be
appropriate.
[26] At the time of the incident the appellant was a school going lad
aged 16 years old and 20 years when sentence was handed down
on 13
March 2006. At present he is 22 years old and his circumstances have
now changed. We were informed from the bar by his counsel
that he
currently assists his father in his building contracting business.
The appellant is a first offender. As can be gleaned from
the history
of this matter the case has been hanging over his head for some time.
[27] Although the appellant has been convicted of a lesser offence of
being an accessory after the fact to murder it is still a very
serious matter. The actions of the appellant were aimed at assisting
the perpetrator to avoid the consequences of his actions. But
for his
youth a term of imprisonment would have been an appropriate sentence.
There is no doubt however that the case is deserving
of stringent
corrective measures to bring home to the appellant seriousness of the
offence he committed. It also appears that liquour
played a role in
the incident. They came to his father’s business premises in an
attempt to get money to buy more beer.
The conditions applicable to a sentence of correctional supervision
can be tailored to take this into account.
Wasted Costs
[28] Before deciding on the appropriate order there is one further
matter I wish to deal with. This appeal was originally enrolled
for
hearing on 15 May 2008. There was no appearance for the State and we
were totally in the dark as to what had happened. It was
the
industrious effort of counsel for the appellant, Mr Maartens, to whom
this court is indebted, who telephoned the office of the
Director of
Public Prosecutions in Cape Town and established that that office was
unaware that the matter was set down for that date.
This, despite the
fact that the Notice of Set Down of the appeal was forwarded by the
Registrar of this court to that office by registered
post, and was
signed for at the DPP’s office. The appeal was then postponed to 27
May 2008 with an order directing the Registrar
to seek an explanation
from the DPP’s office for the non-appearance of the representative
of the State at the appeal hearing. Some
few days before the
postponed hearing a letter explaining how the debacle occurred and
tendering the necessary apology to the court
was received. It also
contained an undertaking that certain measures have been put in place
and an assurance that a recurrence would
be avoided. At the postponed
hearing the State was represented by Ms Raphels who offered the
State’s apology to the members of
the court and repeated the
explanation and assurances given in the letter addressed to the court
by the DPP. We accept the apology.
[29] It must be stressed however that the appellant was put to
considerable expense as a result of the negligence of the State in
failing to ensure that it was represented at the hearing. Quite
rightly counsel for the appellant asked for an order directing the
State to pay the wasted costs occasioned by the non-continuation of
the matter on 15 May 2008. Counsel for the State could not oppose
the
application. I agree with counsel for the appellant that this is a
proper case for a suitable order for costs against the State
to
compensate the appellant for the wasted costs incurred as a result of
the State’s non-appearance on 15 May 2008. Such cost should
in my
view be taxed on the scale as between attorney and client to minimise
the prejudice to the appellant.
Order
[30] In the particular circumstances of this case I consider that an
appropriate sentence would be one of correctional supervision.
In the
result the appeal is allowed to the extent set out below. I shall set
out the conditions of the correctional supervision order
in
Afrikaans, as that is the appellant’s home language. The order of
the court
a quo
is set aside and replaced with the following:
‘
1. The appeal is allowed.
2. The conviction of murder and the sentence imposed are set aside,
and the following substituted:
“
Die beskuldigde word skuldig bevind aan
begunstiging tot moord en gevonnis tot twee jaar korrektiewe toesig
in terme van artikel 276(1)(h)
van die Strafproseswet 51 van 1977 op
die volgende voorwaardes:
1(a) Huisarres te Rangeweg 8, Matroosfontein, Elsiesrivier, Wes-Kaap
gedurende die tye soos deur die Kommissaris van Korrektiewe
Dienste
bepaal vir die volle duur van korrektiewe toesig. Met dien verstande
dat die Kommissaris gemagtig word om die plek te wysig
en enige
tydperk van huisarres op te skort of te verleng onder die voorwaardes
wat hy goedvind of, daarna, vir solank en onder sodanige
voorwaardes
as wat hy mag goedvind, her in te stel.
(b) Gemeenskapsdiens vir ‘n maksimum periode van 16 uur per maand
vir die duur van die vonnis.
Die diens sal bestaan uit skoonmaak en instandhouding van perseel te
SAPD Kuilsrivier onder toesig van die stasie kommissaris of
sy
gevolgmagtige.
Met dien verstande dat die Kommissaris gemagtig word om:
Die aard van die diens en die plek waar dit gelewer word, te wysig
indien dit nodig is om die nakoming van die vonnis te bevorder.
Indien verdienstelik, hoogstens een derde van die tyd waarin
Gemeenskapsdiens verrig moet word, op te skort onder voorwaardes wat
hy goed vind.
Addisionele gemeenskapsdiens by te voeg ten einde nakoming van die
vonnis te bevorder, maar wat nie die oorspronklike hoeveelheid
ure
oorskry nie.
(c) Onderwerping aan behandelingsprogram(me)/rehabilitasieprogram
soos bepaal met re-assessering deur maatskaplike werker by Gemkor
kantoor.
(d) Die plek waar, tye waartydens, duur en inhoud van sodanige
programme/toesigdiens sal deur die Kommissaris van Korrektiewe
Dienste
bepaal word. Enige koste verbonde aan sodanige
programme/toesigdiens kan van die beskuldigde verhaal word.
(e) Onderwerping aan monitering deur die Kommissaris van Korrektiewe
Dienste ten einde die oogmerke van hierdie vonnis te verwesenlik.
2. Die beskuldigde mag nie sonder toestemming van die Korrektiewe
Beampte die landdrosdistrik waar hy woon en werk verlaat nie.
3. Die beskuldigde moet:
(a) By die korrektiewe beampte aanmeld by Landdroshof Bellville,
kamer 311 binne 14 dae na afloop van verrigtinge in die hof.
(b) Hom vir die volle duur van hierdie vonnis van die gebruik van
sterk drank of die gebruik van dwelmmiddels anders as op voorskrif
van’n mediese praktisyn weerhou.
(c) Enige redelike opdragte betreffende die nakoming en administrasie
van hierdie vonnis wat die Kommissaris van Korrektiewe Dienste
uitreik, uitvoer.
(d) Die Kommissaris van Korrektiewe Dienste vooraf in kennis stel van
enige verandering van woon- of werksadres.
(e) Hom ook skuldig maak aan enige verdere misdaad nie.”’
3. The State is ordered to pay to the appellant the wasted costs
occasioned by the non-appearance of its representative on 15 May
2008. Such costs are to be taxed by the taxing master of the Cape
High Court according to the attorney and client scale in civil
cases
applicable in that court, and are to be paid within 30 days of the
taxing master placing his
allocatur
on the bill of costs.
4
_________________________
KK MTHIYANE
JUDGE OF APPEAL
CONCUR:
CLOETE JA
MHLANTLA AJA
1
1976
(4) SA 715
(A) at 718E-719A.
2
4
ed (2003) p 802.
3
1963
(1) SA 692
(A) 693H–694A.
4
Cf
ss 310A(6)
and
311
(2) of the
Criminal Procedure Act 51 of 1977
.