About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 603
|
|
S v Mbonani (CC118/2017) [2018] ZAGPPHC 603 (13 March 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CC118/2017
13/3/2018
In
the matter between:
THE
STATE
V
TOKOLOGO
MBONANI
ACCUSED
Coram:
Phahlane AJ
JUDGMENT
Phahlane
AJ
[1]
The accused was charged with four
counts, namely:
Count
1:
Kidnapping;
Count
2:
Murder, read with the provisions
of sections 51 (1) and
section 51
(2) of the
Criminal Law Amendment
Act 105 of 1997
;
Count
3:
Robbery with aggravating
circumstances, read with the provisions of
section 51
(2) of Act 105
of 1997;
Count
4:
Rape, read with the provisions of
section 51 (2) of Act 105 of 1997.
[2]
The specific allegations were as
follows:
Count
1,
in that upon or about 20 March
2017 and at or near Brakpan, in the district of Brakpan, the accused
did unlawfully and intentionally
deprived YVONNE FIKILE SIBEKO, an
adult female, from her freedom of movement by taking her to a
secluded place in Brakpan.
Count
2,
in that upon or about 20 March
2017 and at or near Brakpan, in the district of Brakpan, the accused
did unlawfully and intentionally
kill YVONNE FIKILE SIBEKO an adult
female.
Count
3,
in that upon or about 20 March
2017 and at or near Brakpan, in the district of Brakpan the accused
did unlawfully and intentionally
assault YVONNE FIKILE SIBEKO and
then and there and with force took from her possession a Nokia
cellular phone, aggravating circumstances
being present in that
serious bodily injuries were inflicted.
Count
4,
in that upon or about 20 March
2017 and at or ear Brakpan in the district of Brakpan the accused did
unlawfully and intentionally
commit an act of sexual penetration with
a female person to wit YVONNE FIKILE SEBEKO by inserting his penis
into her vagina without
her consent.
[3]
The
accused who is legally represented by Mr Moeng from Legal Aid SA
confirmed that the provisions of section 51 of the Minimum
Sentences
Act
[1]
as well as the Competent
Verdicts to the counts of kidnapping; robbery and murder were
explained to him.
[4]
The accused pleaded guilty in terms of
section 112 (2) of the Criminal Procedure Act of 1977 (CPA) to counts
2 and 3. However, with
regards to count 3, the accused pleaded guilty
to Theft and not Robbery. The accused then pleaded not guilty to
counts 1 and 4
and did not give a plea explanation with regards to
these counts. The section 112 statement was read into the record.
[5]
State did not accept the section 112
statement on the basis that count 2 of murder lacks the averments for
the requirements of premeditated
murder and submitted that State will
lead evidence. As a result, court did not question the accused with
reference to the alleged
facts of the case and court could not accept
or confirm the contents of the section 112 statement which has been
rejected by the
state.
[6]
In terms of section 113 of the CPA, the
court changed the plea of Guilty to a plea of Not Guilty. The court
also explained the procedure
and effect of section 113 of the CPA to
the accused and the accused confirmed that he understands.
[7]
The accused made formal admissions in
terms of section 220 of the CPA. It also appeared that the accused
had made a Pointing Out
and both the state and defence agreed that
there will be no need to hold a trial within trial. The reason
according to the accused
counsel, was that the accused has confirmed
that his constitutional rights were explained to him; and that he was
not threatened
or assaulted. The only issue in dispute with regards
to the pointing out was the allegation of a confession made to
Captain Magane
who conducted the Pointing Out as it was not reduced
to writing.
[8]
In support of its case, the state called
Captain Simon Magane (Magane) as its first witness. He testified that
he is stationed at
Daveyton police station and that on 28 March 2017
he was requested by Colonel Mangani to interview the accused and
conduct a pointing
out. He said he was not involved in the
investigation of this case as it was investigated by the Brakpan
police. He testified that
he spoke Zulu language to the accused and
there was no interpreter needed because they both understood each
other. This interview
was done at Brakpan police station in the
computer room.
[9]
Captain Magane testified that he
completed part 1 and 2 of the 'Notes on Pointing Out' (handed in as
exhibit F)
before
the actual pointing out was done. I interpose to state that Part 1
and 2 is a proforma relating to, among others, the particulars
of the
captain and the accused; and the constitutional rights of the
accused. Magane further testified that after the interview
in terms
of part 1 and 2, the accused indicated that he was willing to do a
pointing out. He says going to do a pointing out, they
left with the
driver and a photographer. He testified that the accused was giving
directions which led to them driving up to the
end of town, to the
beginning of the veld. It is a distance of about plus minus 7
kilometres from the police station to the area
where the deceased was
found. According to him, the accused told them to stop at the place
where the houses end and they had to
walk for about twenty minutes
from where they stopped the motor vehicles to the spot where the
deceased body was found.
[10]
Magane explained that it is a difficult terrane to walk through
because there was water and they
walked with difficulty through the
path. He says walking towards the spot where the deceased was found,
the accused was leading
the way and they were following him. He says
the accused did not struggle or have difficulty taking them to the
spot where the
deceased was found.
[11]
Magane was referred to
Exhibit
G,
which is the photo album
containing the photos of the body of the deceased. He testified that
when the accused was pointing at the
deceased, he gave a version of
what happened on the day he was with the deceased, ie. That they were
from town and took a short
cut into the veld and upon reaching a spot
where the deceased was lying, he raped her and then stabbed her.
Magane said he asked
the accused where the knife was, which he used
to stab the deceased with and the accused indicated that after
stabbing the deceased,
he just threw it away but he did not go and
take it. On the question whether accused told him about the phone
belonging to the
deceased, he responded by saying he could not
remember if accused told him about the phone belonging to the
deceased. He further
told the court that when the accused was telling
him about the rape and the knife, they were still standing right at
the spot where
he was pointing out at the deceased.
[12]
Magane further testified that where the
deceased was found, there was grass. Asked about the accused emotions
when he pointed at
the deceased, Magane said the accused did not show
any emotions, he just stood there and showed them the deceased. He
says he completed
the form regarding the notes on pointing out itself
back at the police station. He confirmed that he did not write about
the rape
in this form. The reason according to him was that on their
return upon arrival at the police station, the accused was not
corporative
and wanted to go back to prison, as he complained about
missing his food. He says he had to beg him to sign.
[13]
Under cross-examination Magane explained
that before the pointing out, he did not know the charges against the
accused or what was
to be pointed out. He is not sure whether the
spot where the deceased was found is the same spot where the rape and
killing took
place. He testified that he could not ask questions of
where the rape and killing happened or where they were coming from
and the
accused did not explain either.
[14]
Magane further testified that it was the
first time for him to do a pointing out and he was guided by Exhibit
F in conducting a
pointing out. He was challenged at length with
regards to Part 3 of Exhibit F. It was put to him that Part 3
required him to note
everything that was said by the accused and that
he did not, to which he responded by saying the accused was not
corporative. It
was further put to him that at the time when he
submitted exhibit F, he had not finished writing what he alleged the
accused had
told him, and that as a justice of peace who holds the
same position as a magistrate, he should have noted all the
information
given to him by the accused. Magane responded by saying
it is true that the information is not in the form but he didn't know
what
was happening. He testified that it was only after five months
of doing the pointing out that he was requested by the OPP to make
a
statement explaining whether accused told him about the rape.
[15]
It was put to him that the accused
denies telling him that he had raped the deceased. It was further put
to him that he might have
assumed that the deceased was raped seeing
that she was found naked. Further that it did not matter if the
accused was impatient,
he should have done what was required of him
[ie. Write everything said to him by accused] or at least written the
words "rape"
in the form, to which he responded by saying
he did not.
[16]
There was no re-examination for this
witness and the next witness for the state was P P S. She testified
that she is 24 years old
and stays in Brakpan. She works at a shop as
a cashier and during March 2017, she was still working at the same
shop. She confirmed
that she knew the accused because accused used to
come to the shop with his girlfriend. She testified that the accused
had indicated
that he is looking for a lady because there is a job at
the place where he is working, and then she contacted Ntombi. She
testified
that the accused left with Ntombi, and the report she
received later from Ntombi was that where they went with the accused,
they
found that there was somebody already working there. The accused
told her that his employer will look for another place for him,
and
that's where Ntombi will be employed. However, Ntombi had reported to
her that they found a lady and a child at a place where
they went but
the owner was not there.
[17]
To the question of how it happened that
the accused went away with the deceased, S responded by saying that
she phoned the deceased
on the morning of 7 March 2017, and the
deceased came to her workplace and thereafter, the accused came. She
testified that the
deceased and the accused were alone when they left
and the deceased was comfortable going with the accused. Ntombi
wanted to go
along with them but the accused was in a hurry. The
accused said the job was in Brakpan Oos/East. According to her, it
was the
first time that the accused and deceased were together.
[18]
Around 11 she phoned the deceased and
there was no reply. She says around 12h20 she received a whatsapp
message from the deceased's
phone saying: "
I
am disappointed, we can't find the place to the accused's workplace,
I am turning back, the battery is running down, ie. the phone
will go
off '.
Ms S testified that she was
expecting the deceased to come back to her workplace but she never
turned up. She kept trying her phone
but it was off.
[19]
The next day she went to look for her at
the vicinity of Brakpan Oos/East. They then went to plastic village
to look for the accused.
She testified that the accused room was not
locked and they took a picture of his room and asked people around if
they haven't
seen the accused. The neighbours there said the accused
left on Tuesday morning going to a place where he was working. She
stated
that they went to the police station to open a case of missing
person and went back to plastic village to ask the neighbours for
the
accused's number.
[20]
She said around 3pm accused came to the
shop where she was working, indicating that he took the deceased to
catch a taxi to Duduza
taxi rank. Accused indicated that he did not
see if there were people in the taxi as he was standing a distance
away. The accused
then bought a Cell C SIM card. She asked the
accused if he has a cell phone and the accused said he's got one. She
testified that
later on she realised that the deceased's (her aunt)
messages were opened.
[21]
The third state witness was N M M. She
testified that she is known as Ntombi but that Ntombi is her
nickname. She said she was approached
by P that there is a person
looking for someone for a job. She testified that she left with the
accused going to a white man's
house. On arrival she knocked three
times and a child came out and said her mother has a person working
there. The helper came
out, saying the owner of the house went to
fetch the child from school. She stated that she left with the
accused going back to
P and when they got there the accused said they
found the owner of the house. She explained that she told P that she
did not see
the owner of the house and she cannot even say whether
the owner has got white or black hair. According to her, this
happened before
the death of the deceased. She further said on the
way the accused asked severally if she was serious about looking for
a job.
Her reply to the accused question was that she is desperately
looking for a job because she has children. She indicated that she
started knowing the accused after P had introduced him. There was no
cross-examination of this witness.
[22]
The last witness for the state was Dr
Solly Skosana. He testified that he compiled
Exhibit
C
which is a post mortem report. He
received information that the deceased had died on 28 March 2017 and
when the body of the deceased
was brought to him, it was already
refrigerated. He testified that the deceased body was burned.
[23]
I interpose to state that the
findings or cause of death on the post mortem report compiled by Dr
Skosana is reflected as follows:
PROVISIONAUINTERIM
CAUSE: Undetermined based on post mortem findings alone (Blood
results pending) Exhibit D
is an
affidavit by XV Tshabalala in terms of section 212 (4) of the CPA
stating the carbon monoxide saturation of the blood sample
taken from
the deceased. The results according to the analysis done by
Tshabalala was that
"Carbon
Monoxide content of the blood specimen was 16.6
%
saturation of the total Haemoglobin".
Exhibit
E is an additional post mortem
report by Dr Sarang who stated in his report that
"
after the toxicology results were examined, the cause of death
is
consistent with
"CARBON
MONOXIDE INHALATION".
[24]
Dr Skosana testified that at the time
when the second toxicology report was made, he was no longer working.
When asked if the deceased
was still alive or dead at the time she
was burned, the doctor responded by saying, finding carbon monoxide
in the system of the
deceased meant that when she was burned, she was
still alive and that is why she inhaled smoke. He explained that
smoke can only
get on the body through inhalation.
[25]
Referring to his report on the
appearance and examination of the body of the deceased, I will
highlight only on the points to which
he was referred to. The
following is noted:
EXTERNAL
APPEARANCE OF THE BODY AND CONDITION OF THE LIMBS:
1.
The body is burned over the face,
anterior chest, right breast and right arm.
2.
She is still wearing a red and white
panty that is burned
3.
Pubic area badly burned and both
thighs
4.
Right breast is burned and
contracted
5.
Toenails printed pink
6.
There is a blue and white ligature
around the neck which is partially burned
7.
There appears to be a burned rug
which has been stuffed into the mouth
8.
There is also maggots present in the
vagina
9.
1cm incised puncture wound left
upper quadrant with disembowelment.
HEAD
AND NECK
1.
SCALP:
Extensive bruising scalp
2.
INTRACRANIAL
CONTENTS: Sub-arachnoid staining involving occipital lobe
3.
ORBITAL,
NASAL AND AURAL CAVITIES: nose is normal. Lips burned
4.
MOUTH,
TOUNGE, AND PHARYNX: White and black cloth stuffed into mouth and
pharynx extending to pharynx
5.
NECK
STRUCTURES: Hyoid bone intact. Extensive bruising strap muscles.
ABDOMEN
1.
INTESTINES AND MESENTERY: Incised wound mesentery
[26]
To the question whether the deceased was
raped, his answer was that he could not determine that rape had
occurred due to the maggots
that were found in her vagina and also
that the body was in a state of decomposition. Dr Skosana further
testified that there was
bruising on the neck muscles which could
also have been caused by external forces like strangulation for
example. He explained
that the cloth stuffed into the mouth and
throat of the deceased made it impossible for her to breath. This
according to him, means
that the cloth was forced, or rather force
was used to push the cloth into the pharynx/throat of the deceased.
[27]
He testified further that the bruising
of the scalp indicated that blunt force was applied on the head,
hence the force on the occipital
lobe (ie. the back part of the
head).
[28]
Further that the incised wound on the
abdomen means a sharp object like a knife could have been used. He
explained that the insides
of the stomach were coming out. In his
opinion, the degree of violence like the bruising on the scalp meant
that force was used
on the head, resulting in the bleeding of the
occipital lobe.
[29]
Under cross-examination, Dr Skosana
admitted that it was possible that the blow on the head of the
deceased could have been caused
by falling on a hard object. To the
question of how long carbon monoxide could last in the body of a
person, he responded by saying
that he is not sure because he has not
done research on that. When asked whether the concentration of carbon
monoxide content of
16.6 % is enough to kill a person as reflected on
exhibit D,
he
responded by saying 16% could not have been the cause of death, and
that there are other factors which could have contributed
to the
death. He closed his evidence by saying that he rules out carbon
monoxide as the cause of death.
[30]
The state closed its case and the
defence followed suit without applying for a discharge in terms of
section 174 of the CPA. With
regards to count 1 state conceded and
submitted that with the evidence as presented, State did not prove
kidnapping and would therefore
not be asking for conviction on this
count. They submit however that with the count of rape, though Dr
Skosana testified that he
could not determine that rape had occurred,
the fact that captain Magane gave evidence that the accused told him
during the pointing
out that he had raped the deceased, that evidence
was not challenged by the accused and the court should take it into
consideration
as rape having been proven beyond reasonable doubt.
[31]
By electing not to testify, the accused
was merely exercising his constitutional rights in terms of section
35(3)(h) 'to remain
silent and not to testify during the
proceeding's. It is trite law that in criminal proceedings, the
prosecution must prove its
case against the accused beyond a
reasonable doubt and that the accused has no duty to prove his
innocence. The presumption of
innocence is an established principle
of South African law which places the burden of proof squarely on the
prosecution. It requires
that the prosecution bear the burden of
proving all the elements of a criminal charge.
[32]
As stated in Schwikkard
[2]
"the
presumption of innocence both at common law and as
a
constitutional
right places
a
burden
on the prosecution to prove the guilt of an accused person beyond
reasonable doubt. The presumption of innocence applies
to those
elements of the state's case that must be established in order to
justify punishment".
[33]
Captain Magane confirmed that he did not
write this information on Part 3 of exhibit F. He explained that five
months after conducting
a pointing out with the accused, he was
requested by the DPP to write a statement explaining whether the
accused had told him that
he had raped the deceased. When challenged
about what he was required by the form on 'Notes on Pointing Out',
that the rules or
guidelines stated in the form says it is a
must,
that what is being said by the accused should be recorded verbatim,
he said the accused did not want to continue with the interview,
stating that he is in a hurry to go back to prison to get his share
of the food. The specific portion of this instruction in the
form is
couched in the following:
"
Report all movements, observations and what the person says. (His
exact words and all words by the officer
must
be recorded verbatim and
within quotation marks)"
[34]
It is important to note that there was
no DNA done on the body of the deceased to determine whether she was
raped or not. I have
earlier stated that Dr Skosana's evidence was
that he could not determine that rape had occurred due to the maggots
that were found
in the deceased's private parts.
[35]
State submitted that the uncontested
evidence of captain Magane clearly establishes that the deceased was
raped. State further submitted
that based on the provisions of
section 208 of the CPA, the court should convict on the uncontested
evidence of Captain Magane
alone.
[36]
Section 208 of the CPA provides that:
An
accused may be convicted of any offence on the single evidence of any
competent witness.
In
S
v
Webber
[3]
it
was stated that:
"Conviction
is possible on the evidence of a single witness. Such witness must be
credible, and the evidence should be approached
with caution. Due
consideration should be given to factors which affirm, and factors
which detract from the credibility of the
witness. The probative
value of the evidence of a single witness should also not be equated
with that of several witnesses".
In
S
v Sauls and Others
[4]
DIEMONT
JA stated that:
"Where,
for instance, the state relies upon the evidence of
a
single witness and does not adduce
other available evidence, there is
a
greater need for caution".
[37]
In my view, captain Magane's evidence
constitutes hearsay evidence, the credibility of which is dependent
on the accused. I say
this because this evidence stands
uncorroborated by neither the 'Notes on Pointing out' nor DNA The
fact that Magane only made
a statement five months after the pointing
out was done about the information which he did not volunteer, but
was guided on, is
a fact which the court has to treat with caution.
It is a fact which in my view, goes to the credibility of the witness
himself.
[38]
State submitted that the statement made
by the accused to Magane constitutes a confession and it need not be
in writing. As such
it should be admitted by the court. Relying on
the requirements of section 217 of the CPA, defence argued that all
the requirements
for a confession have not been complied with,
specifically, that the statement was not reduced to writing.
The
section provides that:
1.
Evidence of any confession made by any
person in relation to the commission of any offence shall, if such
confession is proved to
have been freely and voluntarily made by such
person in his sound and sober senses and without having been unduly
influenced thereto,
be admissible in evidence against such person at
criminal proceedings relating to such offence: Provided-
(a)
That
a confession made to a peace officer, other than a magistrate or
justice, or, in the case of a peace officer referred to in
section
334, a confession made to such peace officer which relates to an
offence with reference to which such peace officer is
authorized to
exercise any power conferred upon him under that section, shall not
be admissible in evidence unless confirmed and
reduced to writing in
the presence of a magistrate or justice.
(b)
.............
A
'peace officer'
[5]
as defined in
section 1 of the Act includes 'any magistrate; justice; police
official; and a correctional official as defined in
section 1 of Act
8 of 1959
[6]
[39]
The defence has under cross-examination
referred to captain Magane as 'justice of the peace', who was
expected to reduce the statement
of the accused in writing.
[40]
If a confession was made to peace
officer who is not also a justice of the peace or a magistrate, it
must be confirmed and reduced
to writing in the presence of a
magistrate or justice of the peace. A justice of the peace is
basically "a person who is a
justice of the peace under the
provisions of the Justices of the Peace and Commissioners of Oaths
Act of 1963. This refers to an
officer in the SA Police Service,
including someone with the rank of
captain,
superintendent, senior
superintendent, director and commissioner. Those in the lower ranks
of constable, sergeant and inspector
are not officers, and therefore
not justices of the peace. The terms "peace officer"
includes "any magistrate, justice,
police official, member of
the prison service etcetera. All justices of the peace are therefore
peace officers, but the opposite
does not apply.
[50]
It is therefore clear that captain
Magane is a peace officer who is also a 'justice of the peace'. As
such, Du Toit
et al
makes
it very clear that confessions made to peace officers other than
magistrates are inadmissible unless they are confirmed and
reduced to
writing.
[51]
The defence submitted that the statement
or evidence of Magane cannot be said to have proven the count of rape
beyond reasonable
doubt as he could not even produce a pocket book of
what he did or was said to him on the day he took the accused out for
a pointing
out. Defence further submitted that court should not rely
on the captain's recollection which is not backed up by any evidence.
[52]
I am inclined to agree with this
submission. Magane did not write on the Form that accused confessed
to the rape of the deceased.
There is no medical evidence or proved
facts which has been placed before this court to enable it to come to
a conclusion that
the deceased was indeed raped.
[53]
This leaves grave doubt on whether the
accused raped the deceased. In the circumstances, I am worry to
conclude that the state has
proven its case beyond a reasonable doubt
that indeed the accused raped the deceased as proffered in count 4.
[54]
With regards to count 1 of kidnapping, I
have already stated that State had submitted, and also conceded in
their heads of argument
that there is insufficient evidence in
respect of this count. I am in agreement with this submission because
no evidence has been
placed before court to prove this count. Under
the circumstance, the accused is entitled to a benefit of doubt and
should be acquitted.
[55]
In asking for a conviction on the count
of murder, state submitted that the murder of the deceased was
premeditated and gave the
following reasons:
1.
That
no employment offer existed as promised by the accused
2.
That
the accused took the complainant to a deserted area and lured her far
away from any houses or businesses.
3.
That
the accused was armed with a knife which he used to stab and kill the
deceased on his own version
4.
That
he tried to conceal evidence pertaining to the murder, by burning the
deceased whilst she was alive.
5.
That
the accused not only had direct intent, but also had carefully
planned the execution of the offence.
[56]
Having made such submissions, state added that failure by the accused
to testify where there
is a clear case for him to answer or give a
reasonable explanation under oath is prima facie case against him,
which became conclusive
proof of his direct intent and planning of
the offence.
I
have earlier touched on the aspect of the accused exercising his
rights in terms of the constitution to remain silent and the
presumption of innocence which I will not repeat.
[57]
In my view, in order to prove
premeditation where there is evidence or proven facts, State must
lead evidence to establish the period
of time between the accused
forming the intent to murder and the carrying out of his intention.
There is no such evidence presented
in this court.
[58]
Turning to the five reasons given by the
state to rely on its submission that murder was pre-planned or
premeditated, it is important
to note that state had from the
beginning rejected the section 112 statement tendered by the accused.
The effect of which meant
state had the onus of proving all the
elements of each and every charge proffered against the accused. I
see no reason why state
would want to use the information on the
rejected section 112 statement, as it does on point 3 [above] of its
reasons, to prove
premeditated murder. Nevertheless, it is important
to note that accused version is not evidence and state cannot rely on
that.
[59]
Magane's evidence was that when the
accused was pointing at the deceased, he gave a version of what had
happened on the day he was
with the deceased. His evidence is that
the accused had told him that he had raped and stabbed the deceased
with a knife. His evidence
was also that the accused told him that he
threw the knife away but did not go and take that knife. When asked
whether accused
had said anything about the phone of the deceased,
Magane said he does not remember if accused told him about the phone
belonging
to the deceased.
[60]
The explanation given by Magane under
cross-examination was that when this information was given to him, he
did not ask where exactly
the stabbing or rape took place and the
accused also did not explain where he stabbed the deceased.
[61]
In short, Magane did not bother to ask
for the details of the information given to him. Of importance, this
information is
not
contained
in the 'Notes on pointing out'. Magane did not even make a statement
relating to this information that was given to him.
It was only after
five months of doing the pointing out that he was asked by the OPP to
write a statement explaining whether the
accused had told him that he
had raped the deceased. No request was made to him to explain whether
the accused had told him he
had killed the deceased or burned her
because this information is also not recorded in the form of 'Notes
on pointing out'.
[62]
I need to mention that the forms
relating to 'Notes on Paintings' out and 'Confessions' are made for a
reason. They require every
detail relating to the particulars of the
accused; his rights; injuries observed on the accused, for example,
to be noted in full.
Most importantly, they require verbal
communication of a person doing the pointing out to be written down,
and his exact words
to be recorded verbatim and in quotation marks.
This form says it is a
must
to
record all words.
[63]
I am worry of accepting the evidence of
Magane, more particularly because nothing relating to the murder;
rape and robbery of the
deceased has been recorded on the document
where he was supposed to note such details. I also take note of the
fact that Magane
did not volunteer the information but was approached
to write a statement by the OPP, which in my view, was a guidance on
what
to write on such a statement. I also note that paragraph 3 of
Part 4 of exhibit F, a question asked to the accused read as follows:
Do you have any complaints about the manner in which I conducted the
pointing out? Accused answered
Yes
.
[64]
The
relationship between evidence and proof has been explained by
schwikkard
[7]
as follows:
"Proof
of
a
fact
means that the court
has
received
probative material with regard to such fact and has accepted such
fact
as
being
the truth for purposes of the specific
case.
Evidence of
a
fact is not vet proof of such
fact
. The court must still
decide whether or not such fact has been proved. This involves
a
process of evaluation".
[65]
Relying
on
R
v Blom
[8]
state
also submitted that circumstantial evidence available justifies the
inescapable inference that the accused had planned the
offences. The
court in this case said:
"in
reasoning by inference in a criminal case there are two cardinal
rules of logic which cannot be ignored. The
first rule
is
that
the inference sought to be drawn must be consistent with all the
proved facts.
If it is not, the inference cannot be drawn. The
second rule
is that
the proved facts should be such that
they excluded every reasonable inference from them save the one
sought to be drawn
. If these proved facts do not exclude all
other reasonable inferences, then there must be a doubt whether the
inference sought
to be drawn is correct. This second rule takes
account of the fact that in a criminal case the state should furnish
proof beyond
reasonable doubt".
In
Rex
v De Villiers
[9]
the
court pointed out that:
"the
court should not consider each circumstance in isolation and then
give the accused the benefit of any reasonable doubt
as to the
inference to be drawn from each single circumstance. This approach
can also be put differently: the state must satisfy
the court, not
that each separate item of evidence is inconsistence with the
innocence of the accuse, but only that the evidence
taken as
a
whole is beyond reasonable doubt
inconsistent with such innocence".
[66]
Having stated previously that accused
elected not to testify, in my view, no adverse inference can be drawn
against an accused merely
by virtue of the fact that he has exercised
his constitutional right to refuse to testify.
[67]
In
setting out a test for determining when proof beyond reasonable doubt
would nevertheless be necessary, Schreiner JA In
R
v Mthembu
[10]
said
the following:
"I
am not satisfied that the trier of fact is obliged to isolate each
piece of evidence in
a
criminal
case and test it by the test of reasonable doubt. If the conclusion
of guilt can only be reached if certain evidence is
accepted or if
certain evidence is rejected then
a
verdict
of guilty means that such evidence must have been accepted or
rejected, as the case may be, beyond reasonable doubt. Otherwise
the
verdict could not properly be arrived at. But that does not
necessarily mean that every factor bearing on the question of guilt
must be treated as if it were
a
separate
issue to which the test of reasonable doubt must be distinctly
applied. I am not satisfied that the possibilities as to
the
existence of facts from which inferences may be drawn are not fit
material for consideration in a criminal case on the general
issue
whether guilt has been established beyond reasonable doubt, even
though, if the existence of each such fact were to be treated
by the
test of reasonable doubt, mere probabilities in the Crown's favour
would have to be excluded from consideration and mere
probabilities
in favour of the accused would have to be assumed to be certainties.
Circumstantial
evidence, of course, rest ultimately on direct evidence and there
must be a foundation of proved or probable fact
from which to work.
But
the borderline between proof and probability is largely a matter of
degree, as is the line between proof by a balance of probabilities
and proof beyond reasonable doubt. Just as a number of lines of
inference, none of them in itself decisive, may end their effect
lead
to a moral certainty (Rex v de Villiers
1944 AD 493
at 508)) so, it
may fairly be reasoned, a number of probabilities as to the existence
of facts from which inferences are to be
drawn may suffice, provided
in the result there is no reasonable doubt as to the accused's
guilt".
[68]
I note that all circumstantial evidence
depends upon the facts which are proved by direct evidence. Turning
to the first cardinal
rule in Blom
supra,
I am of the view that State did not
prove any facts on which this court can draw an inference from.
[69]
Having said this, it is now for this
court to decide whether on the evidence at hand, it can be said that
state has proven its case
against the accused beyond a reasonable
doubt. When evaluating or assessing evidence, it is imperative to
evaluate all the evidence,
and not to be selective in determining
what evidence to consider.
See
in this regard
S
v Van der Meyden
[11]
where
NUGENT J stated at 450 that:
"What
must be borne in mind, however, is that the conclusion which is
reached (whether it be to convict or to acquit) must
account for all
the evidence. Some of the evidence might be found to be false, some
of it might be found to be unreliable, and
some of it might be found
to be only possibly false or unreliable, but none of it may simply be
ignored'.
[70]
What is clear from the evidence of Ms P
P S is that the deceased had left with the accused and the deceased
was comfortable going
with him. Around 11 she, phoned the deceased
and there was no reply. She said around 12h20 she received a whatsapp
message from
the deceased's phone saying:
"I
am disappointed, we can't find the place to the accused's workplace,
I am turning back, the battery is running down, ie.
the phone will go
off'.
She further testified that she
was expecting the deceased to come back to her workplace on that day
but she never turned up. She
kept trying her phone but it was off.
She told the court that around 3pm the next day, accused came to the
shop where she was working,
indicating that he took the deceased to
catch a taxi to Duduza taxi rank, and accused indicated that he did
not see if there were
people in the taxi as he was standing a
distance away.
[71]
Unfortunately, this evidence does not
assist the court in any way, in determining the factors surrounding
the death of the deceased
and the robbery thereto.
[72]
No evidence has been presented to prove
that accused indicated that he had burned the deceased. It may be
that the accused had pointed
out at the body of the deceased.
However, I have difficulty accepting or inferring that the pointing
out which is not backed up
by direct evidence is conclusive proof
beyond reasonable doubt that accused burned the deceased. Therefore,
the fourth reason given
by the state ie. that accused tried to
conceal evidence pertaining to the murder by burning the deceased
while still alive is also
not supported by evidence.
[73]
In evaluating the evidence of Magane as
a whole, I am unable to conclude that Magane was a credible and
reliable witness for the
reasons given above. With this doubt in my
mind, and having considered the evidence as a whole, I am of the view
that Magane's
evidence was not supported by any proven facts and as
such, his evidence is rejected. No evidence has been placed before
court
to even prove the count of robbery.
[74]
Under the circumstances, this court
finds that state did not prove beyond a reasonable doubt that (1) the
accused has killed the
deceased; (2) the accused has raped the
deceased (3) the accused had robbed the deceased. As such, accused
has to be given the
benefit of doubt.
In
the circumstance, the accused is acquitted of all counts.
PD Phahlane AJ
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the State : Adv.
GJC Maritz
SC
and Adv. PW Coetzer
Instructed
by :
National Prosecuting Authority
For
the Defendant : Mr S Moeng
Instructed
by : Legal aid
SA
Date
heard
: 06 - 08 March 2018
Date
delivered : 13 March
2018
[1]
Act 105 of 1997
[2]
[2]
Principles of Evidence, PJ Schwikkard
et al,
Fourth Edition
2016 at page 554
[3]
1971(3) SA 754 (A)
[4]
1981 (3) SA 172 (A)
[5]
See Schwikkard
supra
at 368; Commentary on the
Criminal
Procedure Act, Du
Toit
et al
Service 57,2016, 24- 61
[6]
Correctional Services Act 8 of 1959
[7]
At 21
[8]
1939
AD 188
[9]
1944 AD 493
at 508-9
[10]
1950 (1) SA 670
(A) at 679-680
[11]
1999 (1) SACR 447
(W)