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[2018] ZAFSHC 204
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Nyelele v S (A112/2018) [2018] ZAFSHC 204 (27 November 2018)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : A112/2018
In
the matter between:-
MOJALEFA
NYELELE
Appellant
and
THE
STATE
Respondent
CORAM:
NAIDOO, J
et
MOLITSOANE, J
HEARD:
26 NOVEMBER 2018
JUDGMENT
BY
MOLITSOANE, J
DELIVERED:
27 NOVEMBER 2018
[1]
The appellant and his three co-accused were charged in the Regional
Court sitting in Theunissen with murder read with the provisions
of
s51
of the
Criminal Law Amendment Act 105 of 1997
. He was convicted
and sentenced to 20(twenty) years imprisonment. Leave to appeal his
sentence and conviction was granted by this
court following his
successful petition to the Judge President. Mr Modise represented the
appellant and Mr Bontes represented the
state.
[2]
The facts giving rise to these proceedings may be summarised as
follows:
Nthabiseng
Eunice Ramokgethi (Nthabiseng) was at the time of this incident in a
love relationship with the deceased. On the 26
th
April
2013 at about 20h15 she and the deceased were walking from town when
the latter stopped to pass water. While the deceased
was busy passing
water she heard a group of people talking. Deceased suggested that
they enter into a yard of the house where he
had been passing water.
When they were about to pass a corner of that house they heard
someone calling the name of the deceased.
She looked back and she saw
that it was accused number 4.She then ran out of the gate of that
house and when she looked back she
saw the deceased standing at the
corner of the house. She testified that she also saw accused 4
drawing a shiny object from his
waist. She further saw a group of
about 11(eleven) people surrounding the deceased. Other members of
that group went around the
house. In the group she identified accused
one, accused two and the appellant. She confirmed that she knew the
appellant because
at one stage they were in the same class at school.
She was adamant appellant was amongst the group but he just stood
there.
[3]
She testified that later she returned to the scene in the company of
the aunt of the deceased and the police. They found the
deceased at
the house next to the one where they had originally entered. He had
been stabbed to death. She did not know who killed
him. The post
mortem report that was handed in as an exhibit as well as the
testimony of Dr Nieuwoudt, the pathologist, who was
later called by
the court indicated that the deceased was stabbed 22 times and he
died of multiple stab wounds.
[4]
On the other hand, the Appellant’s version is that on the said
day he had visited his friend known as Tulo. While at his
friend’s
place he received a ‘please call me’ sms from his sister.
He went home and arrived at 19h45. He testified
that he watched a
soap opera on television (commonly referred to as a soapie),
whereafter he went to sleep. He denied any knowledge
or participation
in the death of the deceased. His sister, Tseleng Nyelele also
testified on his behalf confirmed that the
appellant arrived at
home at about 19h45 while she was also watching a soapie. She
confirmed that the appellant never left the
house that night.
[5]
The central issue in this appeal is the reliability of the
identification of the appellant by the single witness Nthabiseng.
[6]
State bears the onus to prove the guilt of an accused beyond a
reasonable doubt. What is expected of an accused person is to
give a
version which is reasonably possibly true. The court will only return
a verdict of guilty if it finds that not only is the
version of the
accused improbable but also that it is false beyond a reasonable
doubt.
[7]
The trial court is entitled to consider the probabilities and
improbabilities. In
S v Chabalala
2003 (1) SACR 134
SCA at para [15] Heher AJA (as he then was)
held:
“
The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused’s guilt.”
[8]
The state case is based on the evidence of a single witness, namely
Nthabiseng.
Section 208
of the Criminal Procedure Act provides that
an accused may be convicted on the evidence of a single competent
witness.( See
R v Mokwena
1956(3) SA 81 at 85. Such evidence
must be clear and satisfactory in all material respect. Not only must
such evidence be credible
but it must also be reliable. The court in
S v Sauls and others
1981(3) SA 172 at 180 E-G said the
following:
“
There is no
rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness…The
trial
judge will weigh his evidence, will consider its merits and demerits
and, having done so will decide whether there are shortcomings
or
defects or contradictions in his testimony,[if] he is satisfied that
the truth has been told. The cautionary rule referred to
by De
Villiers JP in 1931(in Rv Mokoena), may be a guide to a right
decision but it does not mean ‘ that the appeal must
succeed if
any criticism, however slender, of the witnesses’ evidence
where well founded….” It has been said
more than once
that the exercise of caution must not be allowed to displace the
exercise of common sense”
[9]
This incident happened at night. It was just after 20H00 according to
the evidence of Nthabiseng. She, however, indicated that
it was
visible as there was an Apollo light nearby. She testified that while
running away she looked back and she saw accused 1
and 2. She
originally said in cross examination that she managed to observe both
accused 1 and 2 for 10 minutes. When pressed further
on this issue
she changed her version and said she could have observed accused I
and 2 for ten seconds.
[10]
According to Nthabiseng she ran away the moment she heard the name of
the deceased being called. While she was running away
she turned and
made all these observations of who formed part of the group, how many
people were in the group, who was holding
a knife or a shiny object.
According to the witness she was running away from the scene and not
towards it. She was frightened
.It is inconceivable that she could
have observed all these things in ten seconds.
[11]
It is true that she
attended school with the appellant and knew him well. In that respect
her testimony cannot be faulted.
The appellant also did
not
dispute
the fact that
they attended school together. Her testimony is reliable in so far as
her prior knowledge of the appellant is concerned.
Her reliability as
to her prior knowledge of the appellant does not necessarily make her
observation of the people who were in
the group reliable. There is no
corroboration whatsoever of her testimony.It is conceded on behalf of
the respondent,in my view,
correctly so that as much as her testimony
is honest it cannot be said to be reliable.It is my considered
view that the trial
court erred in finding that the evidence of
Nthabiseng was reliable.
[12] In the evaluation of
the evidence the court is obliged to take into consideration the
totality of the evidence. Nthabiseng
testified that she saw the
appellant amongst the group of eleven people. According to her the
appellant was just standing. No evidence
was led whatsoever as to
what he did in the attack of the deceased. The only thing she
observed was that appellant had a shiny
object and the group
surrounded the deceased. Apart from that she cannot testify about
what happened further.She cannot testify
as to who stabbed the
deceased 22 times. As a result of Nthabiseng’s evidence
that the appellant was present
on the scene where the
deceased was later found dead, the trial court found that common
purpose had been proven
.
It is submitted on behalf of the
respondent in the heads of arguement that the following
requisites in respect of common
purpose have not been satisfied,
namely,
·
That there was
no evidence that the appellant was aware of the commission of any
offence on the night in question;
·
That on the
available evidence it could not be argued that the respondent had the
common intention to murder the deceased with the
rest of the group;
·
That there was
no act on record proving any act by the appellant in the killing or
stabbing of the deceased;
·
That there was
no proof of intention to murder.
The
testimony led thus fell short of the requisites for a conviction
based on common purpose.
See
S v Mgesezi
1989(1) SA 687(A).
[14]
The appellant raised a defence of alibi. The appellant was
corroborated in material respects by his sister, Tseleng. I can
find
no reason to hold that his version is not reasonably possibly
true. In any event, Mr Bontes candidly conceded that the
appellant
should not have been found guilty in this matter as there is no basis
for such a conviction
.
[15]
Having regard to the totality of the evidence I am of the view that
the trial court erred in finding that the state has proven
its case
beyond a reasonable doubt. Having regard to my finding
regarding the verdict, it follows that the sentence cannot
stand. I
accordingly propose the following order:
ORDER
(1)
The appeal against the conviction is
upheld.
(2)
The conviction and the sentence are hereby
set aside
_____________
P.E.MOLITSOANE, J
I
concur and it is so ordered
______________
S.
NAIDOO,J
On
behalf of appellant: Adv. M Modise
Instructed
by:
BLOEMFONTEIN
JUSTICE CENTR
On
behalf of the respondent: Adv. DW Bontes
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN