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[2018] ZAFSHC 57
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Fihlela v S (A73/2017) [2018] ZAFSHC 57 (3 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
A73/2017
In
the matter between:
SIFISO
KENNETH
FIHLELA
Appellant
and
THE
STATE
Respondent
CORAM:
VAN ZYL J
et
NAIDOO, J
JUDGMENT
BY:
NAIDOO, J
HEARD
ON
:
28 AUGUST 2017
DELIVERED
ON:
3 MAY
2018
INTRODUCTION
[1]
The appellant was charged with one count of Murder (count 1) and one
count of Robbery with Aggravating Circumstances (Count
2), in the
Regional Court, Bloemfontein. He pleaded not guilty to both counts,
but was convicted of same after the trial proceeded,
and he was
sentenced on 29 August 2013 to Fifteen (15) years’ imprisonment
on each count. The appellant applied to the court
a
quo
for leave to
appeal against the conviction and leave was granted accordingly. I
note, however, that counsel for the appellant erroneously
indicated
in his oral address in court that the appeal lies against the
conviction and sentence. Mr JD Reyneke represented the
appellant in
this court and Mr R Hoffman represented the respondent, being the
state.
BACKGROUND
[2]
Tsietsi Lazarus Madibola, also known as Vusi, received a call at
approximately 8h00 on 4 September 2011, informing him
that his
nephew, Dumelo Vernon Modibola (the deceased), had passed away. He
called the deceased’s cellular telephone number,
and the person
who answered told him he was at a tavern. Upon going there, Vusi was
not able to find that person who had earlier
answered the telephone.
He then decided to visit another tavern, and using a cellular
telephone belonging to someone else, Vusi
called the deceased’s
telephone again. It was answered by someone who said he was at a
tavern in another township. Vusi realised
that the music he could
hear on the telephone was the same as that in the tavern he was in.
He went in search of the person who
answered the telephone and came
upon the appellant, who said that the cellular telephone that was in
his possession belonged to
him (the appellant) but he was unable to
provide the number to the witness. Vusi then dialled the number of
the telephone and it
rang. The appellant was then apprehended by this
witness.
[3]
Earlier while he was sitting at the tavern, Vusi noticed the
appellant enter the tavern wearing shoes, which appears to be sports
shoes, (commonly referred to as “takkies”), that looked
similar to those that the deceased had owned. Vusi also testified
that, acting on information that he received, a second cellular
telephone belonging to the deceased was recovered from the first
state witness, Tshepo Mokoankoeng. This was confirmed by the first
state witness, who testified that he had bought the telephone
from
the appellant a few hours earlier. Vusi’s brother, Oupa arrived
at some stage and it appears that the appellant was
taken by Vusi and
Oupa to the police station where he was detained. From a photograph
album of the scene, depicting the body of
the deceased, it appears
that the deceased was barefoot and the pockets of his trousers were
turned inside out.
[4]
David Oupa Motshabi (Oupa), uncle of the deceased and brother of Vusi
corroborated Vusi’s evidence regarding the calls
made to the
deceased’s cellular telephone. He arrived at the tavern at the
stage when Vusi had apprehended the appellant.
Oupa searched the
appellant and found a home-made knife tucked at his waist. He also
indicated that the appellant was wearing shoes
that belonged to the
deceased, and identified the shoes by some small stones that were
stuck on the shoes. It seems that the shoes
may have been torn, as
Oupa testified that he had promised to buy some glue so that the
deceased could fix the shoes. When the
accused was handed over to the
police, the takkies which the Vusi identified as belonging to the
deceased, the knife recovered
by Oupa and the two cellular telephones
were handed to the police and entered into the Exhibit Register
referred to as the SAP
13 register.
[5]
The accused testified and called two witnesses. His version is that
on the morning of the incident, being 4 September 2011,
his mother
gave him money to pay her clothing account. On his way to the store
he saw his girlfriend outside a tavern. He alighted
from the taxi he
was in, to join her. He ended up inside the tavern where his
girlfriend’s lady friend, Baratuwa, bought
them some ciders. A
few minutes later three men arrived and were selling two cellular
telephones for R300.00. He purchased these
telephones with the money
his mother had given him. When he went home, he was in trouble with
his mother who demanded her money
back. He then decided to sell these
two telephones. He managed to sell one of them to the first state
witness and while he was
still in possession of the other one, Vusi
called him on that telephone. The events that unfolded were similar
to that narrated
by Vusi, and the appellant was ultimately arrested
by Vusi. The appellant denied that the shoes he was wearing were
taken by Vusi
or that a knife was found in his possession. He alleged
that his shoes were bought for him by his mother.
[6]
The appellant called his mother and Baratuwa Ntebele (Baratuwa) as
witnesses. His mother confirmed that she purchased the shoes
worn by
the appellant. She also confirmed that she visited him in prison.
Baratuwa confirmed the appellant’s version that
they were at a
tavern when three men approached and offered the appellant two
cellular telephones for R300.00. She furthermore
gave a description
of the clothing he wore on that day, as well as the shoes he wore.
Her evidence was that the brown shoes he
was wearing in court were
the same pair that he wore on the day they were in the tavern.
[7]
It is trite that the state bears the onus to prove the guilt of the
accused beyond reasonable doubt and that an accused person
bears no
onus to prove his innocence. If his version is reasonably possibly
true, he is entitled to an acquittal. In this matter,
the conviction
of the appellant is based largely on circumstantial evidence. It is
perhaps useful to briefly examine the timeline
revealed by the
evidence in this matter. Vusi received the call informing him of the
deceased’s demise at approximately 8h00
on 4 September 2011.
According to him, he called the deceased’s cellular telephone
at about 9h00, and he encountered the
appellant at the tavern at
approximately 10h00. The appellant’s mother testified that she
saw the appellant at home at around
10h00 that morning and after
telling him she wants her money back, he left home. The evidence of
the first state witness Tshepo
is that he bought one cellular
telephone from the appellant at approximately 11h00. The accused’s
version is that after he
sold the telephone to Tshepo, he went to the
tavern where he received the call from Vusi. I am inclined to accept
that the sequence
of events is closer to the appellant’s
version, bearing in mind that Vusi must have been in a state of
emotional distress
and attempting to find the person who answered the
deceased’s telephone. It is entirely possible that he may be
mistaken
about time frames relevant to the incidents in this matter.
[8]
The appellant’s mother testified that he slept in the kitchen
and she woke him up at 7h00 that morning, in order for him
to go and
pay her account. His evidence and that of Baratuwa was that the
appellant arrived at the tavern, where he saw his girlfriend,
some
time after 7h00. There is no evidence about what time the deceased
was murdered or what time his body was discovered, but
logic dictates
that it would have had to be before 8h00 (when Vusi received news of
the deceased’s death). The evidence for
the appellant is that
he was at his home since the previous evening and slept at home until
he was wakened by his mother at 7h00
on 4 September 2011. There is no
evidence on record to gainsay this evidence.
[9]
The trial court recognised that the state’s case was based on
circumstantial evidence, and correctly cited the celebrated
case of
S
v Blom
1939 AD 188
, which sets out the “cardinal
rules of logic” to be followed when dealing with circumstantial
evidence. In essence,
Blom’s case states that the inference
sought to be drawn must be consistent with all the proven facts,
which must be such
that they exclude all other reasonable inferences,
save the one sought to be drawn. If the proven facts do not exclude
all other
reasonable inferences there must be doubt as to the
correctness of the inference sought to be drawn.
[10]
When dealing with circumstantial evidence, a court is implored not to
deal with such evidence on a piecemeal basis but to examine
the
evidence in its totality. It is also necessary for the court to
distinguish between inference and conjecture. [See
S
v Reddy
1996(2)
SACR 1 (A);
S v Cooper
1996(2) SA 875 (T)].
In
the present matter, I am of the view that there is no evidence to
show the involvement of the appellant in the murder and robbery
of
the deceased. It is so that he was found in possession of a telephone
belonging to the deceased, very shortly after the deceased’s
family was notified of his demise. The appellant has tendered an
explanation for how he came to be in possession of the telephone.
[11]
If regard is had to the fact that the deceased must have been robbed
and killed some time before 8h00 that morning, that the
appellant was
asleep in his home at the time, and was at a tavern by the time the
deceased’s family was informed of his death,
then the
explanation tendered by the appellant is reasonably possibly true.
That is not to say that his behaviour in attempting
to send Vusi on
the proverbial wild goose chase is not suspicious. It is clear, on
his own version, corroborated by the evidence
of Baratuwa, that he
entertained the reasonable suspicion that the cellular telephones
which he purchased were stolen. He pointedly
asked the question of
the men who sold the telephones to him. This suspicion must have been
confirmed when Vusi called him on one
of the telephones and attempted
to establish his whereabouts. His conduct in misleading Vusi in the
manner he did is a clear indication
that he knew that the telephone
was stolen, but did not appear to have any intention of returning it.
[12]
The defence argued that the trial court misdirected itself in a
number of respects, namely by rejecting the appellant’s
version
even in the face of corroboration by his mother and Baratuwa of his
version. It was also argued that the trial court harassed
and
badgered the defence witnesses and descended into the arena by cross
examining Baratuwa. The magistrate did indeed express
irritation with
that witness for moving around in the witness stand. What is
disturbing is that the witness indicated that she
was not well and
hence was leaning on the witness stand. The magistrate ignored this
and proceeded in a manner which suggests that
she did not believe the
witness. Her questioning of the witness was unnecessarily rigorous
and unwarranted, especially the gratuitous
comments that the witness’
demeanour suggested that she had something to hide. With regard to
the evidence of the appellant’s
mother, the court offered no
substantial reasons for disbelieving that she purchased the shoes
that the appellant was wearing.
The court also incorrectly found that
the appellant’s mother had a problem answering the question
whether she took shoes
to him in prison. The witness in fact said she
would have asked him where were the shoes he was arrested with. The
court’s
reasoning with regard to the evidence of Baratuwa is
erroneous. The fact that she could not remember how many drinks she
bought
but could remember the logo on the appellant’s shoes was
the basis for the court’s finding that this witness was not
credible. As a result the court rejected her evidence.
[13]
In my view, small details about where a call was taken and how many
drinks were purchased were not sufficient grounds for rejecting
this
witness’ evidence. The court did not deal with the
corroboration offered by this witness for the appellant’s
version that he purchased two cellular telephones from three men who
approached him in the tavern. After the state and defence closed
their respective cases, the court called the investigating officer
(Nthombeni) to offer clarity on whether the appellant was arrested
barefoot and how the exhibits were entered into the SAP 13 register.
[14]
It was clear that Nthombeni was not present when the appellant was
brought to the police station, or when the exhibits (the
knife,
cellular telephones and shoes) were entered into the SAP 13 register.
The evidence of the state witnesses was that they
arrested the
appellant and handed him and the exhibits to the police. The SAP13
register reflects that these items belong to the
appellant, whereas
the state witnesses testified that at least one telephone and the
shoes belonged to the deceased. It was indeed
disturbing that the
court referred to Nthombeni as its “client” and proceeded
to suggest to him that when he observed
the appellant to be barefoot,
he thought that the shoes entered in the SAP13 register belonged to
him.
[15]
In my view, the trial court did not properly apply the principles set
out in Blom when dealing with the circumstantial evidence
in this
matter. While an inference may possibly be drawn that, in view of the
appellant being found in possession of the deceased’s
property,
he was involved in the murder of the deceased and robbery of his
property, this is not the only inference that can be
drawn. The facts
of this case also lend themselves to the inference that the appellant
received the cellular telephones knowing
them to be stolen and
reconciled himself with this knowledge. Therefore the correctness of
the inference drawn by the trial court
that the appellant was
responsible for the death and robbery of the deceased is in doubt. I
am of the view that a conviction in
terms of section 37 of the
General Law Amendment Act 62 of 1955 would be the most appropriate.
In
S
v Mani
2002(2) SACR 393
(EC), it was held that
“
where
the evidence did not indicate that the accused had participated in
the actual theft of a stolen motor vehicle found in his
possession,
but that he had become aware of the fact that it was stolen and had
not participated in the disposal of the motor vehicle,
which he was
retaining for his own use, he was guilty of receiving stolen property
and not theft”.
I
agree with this view
.
The
dictum of the court in Mani finds application in this matter, as it
is clear that the appellant entertained a reasonable suspicion
that
the cellular telephones were stolen, which was confirmed when Vusi
tried to locate him, but he retained the one in his possession
for
his own use.
[16] In the
circumstances, the following order is made:
16.1
The appeal succeeds in respect of count 1 (Murder), and the
conviction and sentence in respect thereof is set aside
16.2
The conviction and sentence in respect of Count 2 (Robbery with
Aggravating Circumstances) is set aside and substituted
with the
following:
16.2.1
The accused is found guilty of contravening Section 37 of Act 62 of
1955.
16.2.2
The accused is sentenced to Three (3) years’ imprisonment.
16.3
The sentence in 16.2.2 is antedated to 29 August 2013.
________________
NAIDOO
J
I
concur
________________
VAN ZYL J
On
behalf of Appellant:
Adv. JD
Reyneke
Instructed
by:
The Justice Centre
Bloemfontein
On
behalf of Respondent:
Adv. R Hoffman
Instructed
by:
The State