Brief Summary

Criminal Law — Appeal against conviction — Murder — Appellants convicted of murder of mayor — Evidence of accomplice witness — Cautionary rules applicable to single witness and accomplice — Appellants contended that the state failed to prove guilt beyond reasonable doubt and that the evidence against them was unreliable — Court upheld conviction, finding that the trial judge properly applied the cautionary rules and adequately assessed the credibility of the evidence presented.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an appeal to the High Court of South Africa, Free State Division, Bloemfontein, against the appellants’ convictions for murder and the consequent sentences. The appellants, Caroline Mokgothu (first appellant) and James Mokgothu (second appellant), appealed against their convictions (and, in effect, the life sentences that followed). The respondent was The State, which opposed the appeal and supported the convictions and sentences.

The matter arose from the fatal shooting of Philemon “Joko” Motlatsi, the mayor of the Naledi Municipality, who was shot and killed on 3 May 2010 at Wepener. Following investigation, three suspects were arrested and charged: the two appellants and a third accused, Senooe Khaka. Because accused 3 pleaded guilty to murder, his trial was separated from the trial of the appellants, who pleaded not guilty.

The trial of the appellants commenced on 24 January 2011 before Musi JP. They were convicted of murder on 4 August 2011 and each sentenced to life imprisonment on 25 August 2011. A joint application for leave to appeal was filed on 20 March 2015, and, after a substantial delay, leave to appeal was finalised on 17 August 2017 by Van Zyl J (the trial judge having retired). The appeal proceedings were initiated on 15 February 2018 and argued on 27 August 2018, with judgment delivered on 27 September 2018.

The general subject-matter of the dispute was whether the trial court was correct to convict the appellants of murder on the strength of evidence that included the testimony of the admitted shooter (an accomplice and, in certain respects, a single witness), the evidence of another accomplice witness, and corroborative material including cellular call data, together with the implications of the second appellant’s election not to testify.

2. Material Facts

On the evening of 3 May 2010, at approximately 20h00, the mayor of Naledi Municipality, Philemon Motlatsi, was shot and killed at 18 Louw Street, Wepener, dying on the scene. This fact, and the fact that the death was caused by shooting, was not treated as controversial on appeal.

The State’s case was that the mayor’s killing was the culmination of a planned assassination, arranged by a group that included the appellants and others, and executed by Senooe Khaka (accused 3), a Lesotho citizen who admitted that he shot and killed the mayor. The case against the appellants relied materially on Khaka’s evidence describing (a) an earlier meeting where the plot to kill the mayor was discussed, (b) the appellants’ participation in that plot, (c) the provision of a firearm, (d) the harbouring of the assassins immediately before the killing, (e) telephone contact around the time of the murder, and (f) subsequent payment.

According to Khaka, he was recruited to kill the mayor after being taken (with Potlele and another) to a house later connected to the second appellant. In relation to the first appellant, Khaka placed her at a meeting in February 2010, describing her as the “lady of the house” and attributing to her remarks indicating a desire to have the mayor killed before the mayor could harm them. Khaka’s evidence was that a price for the killing was discussed (he referred to an amount of R60 000 after an initial offer of R70 000), and that Potlele would act as handler and intermediary.

On Khaka’s version, he later met the second appellant in Mafeteng (Lesotho) in the presence of Potlele, and the second appellant was said to have provided Khaka with a .38 revolver, which Khaka said was used to kill the mayor. The evidence further placed Khaka and his companion Seretse in Wepener shortly before the killing. Potlele’s evidence, in its essential parts relied upon by the appellate court, supported that the second appellant fetched Khaka and Seretse from Potlele’s house on Saturday, 1 May 2010, and took them to the appellants’ residence, after which Potlele stated he had no further dealings with them. Khaka’s evidence went further, asserting that he and Seretse stayed at the appellants’ home for the weekend immediately preceding the murder.

The State led cellular data evidence through Ms J P Heyneke, showing numerous calls between the second appellant’s number (072 844 6469) and a number linked to Khaka (078 092 3674) in the period 30 April 2010 to 7 May 2010, including calls on the evening of 3 May 2010 and early morning of 4 May 2010. A dispute on appeal concerned an apparent discrepancy between a number Khaka mentioned in testimony (078 092 6374) and the number appearing in his warning statement and the call data (078 092 3674). The appellate court treated this discrepancy as a digit transposition error rather than undermining the call-data corroboration.

Khaka’s evidence also implicated the second appellant in payment after the murder. He described meeting the second appellant about two weeks later, being taken to the second appellant’s residence, receiving R8 000, and then being taken to a bank where a further R2 000 was paid. The investigating officer, Capt Laux, testified about a warning statement by Khaka in which Khaka implicated the second appellant as having hosted him and Seretse shortly before the shooting and as having rewarded him after the shooting.

The first appellant testified in her own defence and denied involvement, calling no other witnesses. The second appellant elected not to testify and called no witnesses. At the close of the State’s case, the second appellant applied for discharge under section 174 of the Criminal Procedure Act 51 of 1977, which the trial court refused.

3. Legal Issues

The central legal questions concerned whether the evidence, properly assessed, justified the convictions for murder beyond reasonable doubt, particularly where the State’s case depended significantly on accomplice evidence and, in certain respects, the evidence of a single witness. Closely related was whether the trial court correctly approached the cautionary rules applicable to such evidence and whether there was sufficient corroboration for the incriminating aspects relied upon.

As to the second appellant, a key issue was whether, at the close of the prosecution case, the evidence established a prima facie case such that the refusal of a discharge under section 174 was justified, and whether the second appellant’s election to remain silent could permissibly strengthen the State’s case in the face of evidence said to require an answer.

A further issue was the treatment of cellular call data and whether an asserted discrepancy in Khaka’s phone number undermined the reliability of the State’s corroboration.

As to the first appellant, issues included whether her denial could reasonably be true in the face of the State’s evidence, whether the trial court correctly evaluated the credibility and reliability of witnesses such as Mahloko, Khaka, and Potlele, and whether any adverse inference should be drawn from the State’s failure to call certain alleged conspirators said to have been present at the February 2010 meeting.

There was also a legal-characterisation issue: whether, even if a plot existed, the appellants ought to have been convicted on the basis of conspiracy to commit murder rather than murder, and whether any alleged defect in the formulation of the charge (describing them as perpetrators rather than accomplices) affected the validity of the murder convictions.

These issues involved a combination of fact-finding (credibility, reliability, and corroboration), application of legal rules of evidence to fact (cautionary rules, section 174, inferences from silence, and treatment of unused witnesses), and legal classification (murder versus conspiracy and the significance of indictment wording).

4. Court’s Reasoning

The appellate court approached the evidence on the basis that the trial court was required to apply, and had applied, the cautionary rules relevant to (a) a single witness and (b) an accomplice witness. It referred to the principle that a single witness’s evidence must be clear and satisfactory in material respects before it can be relied upon, and to the need for careful scrutiny of accomplice evidence to guard against false implication by someone with inside knowledge. The court accepted that corroboration serves as an objective safeguard in this context and noted that the trial judge expressly cautioned himself regarding Khaka as an accomplice.

On the second appellant’s appeal, the court first addressed the argument that the cellular data undermined Khaka’s claim of contact with the second appellant. It analysed the discrepancy between 078 092 6374 (as uttered in evidence) and 078 092 3674 (reflected in the warning statement and the call data), and regarded the mismatch as a probable, innocent transposition of digits by Khaka in testimony long after the relevant events. The court emphasised that the number recorded closer to the events, in the warning statement, aligned with the number appearing in the call data. On that basis it rejected the contention that proper regard to the cellular evidence would have produced a different verdict.

The court then considered criticism aimed at contradictions in Khaka’s evidence, including inconsistencies relating to a firearm. It acknowledged internal contradictions (including answers suggesting that Khaka at times spoke differently about whether he had received a firearm from Seretse), but held that these did not materially displace the essence of Khaka’s evidence against the second appellant: that the second appellant provided a .38 revolver used in the killing. The court treated the fact that Khaka produced the murder weapon to the police and maintained that the second appellant supplied it as significant, particularly in circumstances where the second appellant elected not to refute that allegation under oath.

In dealing with an asserted contradiction between Khaka’s evidence and a written statement by Sechaba, the court reasoned that Sechaba did not testify and therefore the contents of his statement had no evidential value capable of contradicting sworn evidence. As a result, the court did not treat Sechaba’s statement as a basis to discredit Khaka.

Turning to corroboration, the court held that key aspects of Khaka’s version implicating the second appellant were supported by other evidence. Potlele’s evidence corroborated the presence and movements of Khaka and Seretse around the relevant period, including that the second appellant fetched them and took them to his residence. The call data evidence objectively supported contact between the second appellant and the number linked to Khaka, including multiple calls around the night of the murder and shortly thereafter. The court considered that these features, together with the payment narrative and the pointing out of locations, provided adequate support for the acceptance of Khaka’s evidence in its essential respects.

A substantial component of the reasoning concerned the second appellant’s silence. The appellate court considered that, given the strength of the incriminating evidence, the second appellant’s decision not to testify carried consequences in the sense contemplated by authority on when evidence “requires an answer.” In that context it referred to S v Thebus 2003 (3) SA 505 (CC) and held that the evidence required an explanation, including an explanation for the timing and frequency of calls made to the killer in close proximity to the murder. The court accepted that the trial court’s refusal of the section 174 discharge and its ultimate conviction were not shown to involve a material misdirection warranting appellate interference.

In relation to the first appellant, the court accepted the trial court’s finding that Mahloko was a credible witness and that his evidence supported the existence of motive and strained relations between the first appellant and the mayor. The appellate court did not treat motive as sufficient on its own, but as part of the matrix supporting the State’s account.

The court again assessed Khaka’s evidence as both accomplice and, in certain respects, single-witness evidence. It reasoned that the risk of false implication was reduced by considerations including Khaka’s lack of prior acquaintance with the appellants, his socio-economic background, and the corroboration available from other evidence. The court regarded the corroboration as including the evidence of Potlele concerning visits and harbouring, and the objective cellular evidence implicating the second appellant (and, through the shared household context, supporting the broader narrative).

Potlele was treated as an ambivalent witness. The court characterised him as a conspirator who attempted, in parts of his testimony, to deflect or weaken the case against the appellants, and it endorsed the trial court’s approach of rejecting Potlele’s evidence where it diverged from Khaka’s in a manner the court regarded as artificial and designed to assist the appellants. The court also relied on the temporal sequence of statements (Potlele’s statement predating Khaka’s) to conclude there was no room for the two accomplices to have aligned their accounts by collusion before Khaka’s arrest, and it reasoned that gaps and differences between their versions were inconsistent with a fabricated joint narrative.

On the complaint that the State did not call certain witnesses (named in evidence as being present at the February 2010 meeting), the appellate court rejected the submission that a negative inference should be drawn. It reasoned that it is accepted practice that the defence may call listed but unused State witnesses if it considers them helpful, and that the appellants were legally represented by experienced counsel. The court held that the appellants could not, in those circumstances, legitimately rely on the failure to call those witnesses as a basis for a negative inference against the State.

On the contention that the appellants should, at worst, have been convicted of conspiracy rather than murder, the court treated the point as misconceived: the conspiracy’s object was achieved because the mayor was killed, and the conviction on the completed offence was therefore justified. It also rejected the argument that the indictment’s description of the appellants as perpetrators rather than accomplices invalidated the murder conviction, reasoning that the killer acted as an instrument for the planners and that, on the court’s approach, it made no legal difference to the appellants’ liability for murder.

Finally, the court rejected the argument that the mayor might have been killed by someone else, noting that Khaka admitted being the killer and asserted he acted as agent for the appellants rather than other alleged enemies of the mayor. The appellate court concluded that the State had established the appellants’ guilt beyond reasonable doubt and that there was no material appealable misdirection permitting interference.

5. Outcome and Relief

The High Court dismissed each appellant’s appeal. It confirmed the convictions for murder in respect of both appellants, and ordered that the life imprisonment sentences imposed on each appellant stand. The judgment, as reported, did not include a separate costs order in relation to the appeal.

Cases Cited

R v Mokoena 1932 OPD 79. S v Gentle 2005 (1) SACR 470 (SCA). S v Leve 2011 (1) SACR 37 (ECG). R v Kristusamy 1945 AD 549. S v Mojapelo 2016 JDR 0810 (SCA). S v Francis 1991 (1) SACR 198 (A). S v Thebus 2003 (3) SA 505 (CC). S v Mashumpa & another 2008 (1) SACR 126 (E). S v Radloff 1978 (4) SA 66 (A). S v Mafaladiso & another 2003 (1) SACR 583 (SCA). S v Engelbrecht 2011 (2) SACR 540 (SCA). S v Ishmael & Others (2) 1965 (1) SA 452 (N). R v Heilbron 1922 TPD 99. S v Van der Westhuizen 2011 (2) SACR 26 (SCA). S v Hugo 1976 (4) SA 536 (A).

Legislation Cited

Criminal Procedure Act 51 of 1977 (sections 174 and 205). Riotous Assemblies Act 17 of 1956 (section 18(2)(a)). The Constitution of the Republic of South Africa, 1996 (as referenced in relation to the right to silence).

Rules of Court Cited

No rules of court were cited in the judgment as reported.

Held

The court held that the trial court did not commit a material misdirection in convicting the appellants of murder, notwithstanding that central evidence came from an accomplice who was, in certain respects, also a single witness. The appellate court held that the trial court properly applied the cautionary rules, found sufficient corroboration in material respects (including objective cellular call data and aspects of Potlele’s evidence), and was entitled to accept the accomplice evidence as true beyond reasonable doubt in its essential features.

In relation to the second appellant, the court held that there was a prima facie case at the close of the State’s case, that the refusal of discharge under section 174 was justified, and that the second appellant’s election to remain silent in the face of strong incriminating evidence left the State’s case unanswered in circumstances where an explanation was called for.

In relation to the first appellant, the court held that the State’s evidence established her involvement in the planning and execution of the murder beyond reasonable doubt, that the failure to call additional alleged conspirators did not warrant an adverse inference against the State (particularly given the defence’s ability to call such witnesses), and that conviction for murder (rather than conspiracy) was justified because the planned killing was carried out.

LEGAL PRINCIPLES

The judgment applied the principle that the evidence of a single witness must be treated with caution and should be relied upon only if it is clear and satisfactory in material respects, and that the evidence of an accomplice must be carefully scrutinised because of the risk of false implication by a witness with inside knowledge. It further applied the principle that corroboration provides an objective safeguard, while also recognising that accomplice evidence need not be wholly consistent, wholly reliable, or wholly truthful in every respect, provided the court is satisfied that the essence of the account is true beyond reasonable doubt.

In dealing with evidential challenges based on discrepancies and contradictions, the court applied an evaluative approach that distinguished between contradictions that were material to the core incriminating narrative and those that did not, and it rejected reliance on the contents of a non-testifying witness’s statement as contradictory evidence against sworn testimony.

The judgment applied principles concerning section 174 discharge, focusing on whether the prosecution had presented a prima facie case requiring an answer. It also applied the principle that while an accused has a constitutional right to remain silent, where the State’s evidence is sufficiently strong and calls for an answer, silence may leave incriminating evidence uncontested in a manner that strengthens the State’s case in the overall assessment.

Finally, the court applied the principle that where a conspiracy to murder is proved and the contemplated murder is in fact carried out, conviction for the completed offence of murder is competent, and that the legal significance of describing accused persons as “perpetrators” rather than “accomplices” in the charge formulation did not, on the court’s approach, affect liability where the actual shooter acted as an instrument of those who planned and procured the killing.

Mokgothu and Another v The State (A20/2018) [2018] ZAFSHC 140 (27 September 2018)