S v Moraba (CC107/2014) [2017] ZALMPPHC 6 (10 March 2017)

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[2017] ZALMPPHC 6
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S v Moraba (CC107/2014) [2017] ZALMPPHC 6 (10 March 2017)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: CC107/2014
Reportable
10/3/2017
In
the matter between:
THE
STATE
And
KATISHI
STOFFEL
MORABA                                                         ACCUSED
JUDGMENT
CHIDI
A.J
INTRODUCTION
[1]
The accused a 30 year old (at the time of the commission of the
offence) male person and a South African citizen of GA-MASHAMOTHANE,

ZONE 2, BURGERSFORT, (hereinafter to as the accused) is charged with
four counts;
Count
1:-
murder read with the provisions Section 51 (1) of the Criminal Law
Amendment Act
[1]
(“the
Minimum Sentences Act); it is alleged that upon or about 8 January
2013 and or near GA-MASHISHI VILLAGE, in the district
of PRAKTISEER,
the accused did unlawfully and intentionally kill HANKEBO SOLOMON
SENKEBO an adult male person.
Count
2
:-
robbery with aggravating circumstances as defined in Section 1 of the
Criminal Procedure Act
[2]
(CPA), read with Section 51 (2) of the Minimum Sentences Act; in that
upon or about 8 January 2013 and at or near GA-MASHISHI
VILLAGE, in
the district of PRAKTISEER, the accused did unlawfully and
intentionally and with force assault HANKEBO SOLOMON SENKEBO,
and did
then and with force and violence take the following properties, to
wit:
(a) Three MTN airtime
vouchers
(b)
Three Vodacom airtime vouchers
the property or property
in his possession, aggravating circumstances being present in that
the accused used the firearm to commit
the said crime.
Count
3
:-
Contravention of Section 3 of the Firearms Control Act , read with
the provisions of Sections 1, 103, 117, 120 (1) (a), 121,
read with
Schedule 4 and Section 151 of the Firearms Control Act
[3]
and further read with Section 250 of the CPA- Unlawful possession of
a firearm; in that upon or about 8 January 2013 and or near

GA-MASHISHI VILLAGE, in the district of PRAKTISEER, the accused did
unlawfully have in his possession a 9mm Norinco Pistol firearm,

further particulars of which are unknown to the State without holding
a licence to possess same.
Count
4
:-
Contravention of Section 90 of the Firearms Control Act read with
Sections 1, 103, 117, 120 (1) (a), 121, read with Schedule
4 and
Section 151 of the Firearms Control Act and further read with Section
250 of the CPA- Unlawful possession of ammunition;
in that upon or
about 8 January 2013 and or near GA-MASHISHI VILLAGE, in the District
of PRAKTISEER, the accused did unlawfully
have in his possession
three live rounds of ammunition, the particulars of which are unknown
to the State, without being the holder
of:
(a) A licence in respect
of a firearm capable of discharging that ammunition.
(b) A permit to possess
ammunition,
(c) A dealer’s
licence, manufacture’s licence, gunsmith’s licence,
import, export, or cash in transit permit or
transporter’s
permit issued in terms of this Act,
(d) Or
otherwise authorised to do so.
Before accused could
plead to the charges I informed him about the provisions of Section
51 (1) of the Minimum Sentences Act and
the competent verdicts
thereof.
[2] The accused pleaded
not guilty on all counts and elected not to disclose the basis of his
defence by exercising his right to
remain silent.
[3] The following were
recorded as formal admissions in terms of Section 220 of the CPA,
Exhibit “A
”:
(a)
THAT
the deceased is the person mentioned in the indictment namely:
HANKEBO
SOLOMON SENKEBO
(b)
THAT
DR. BHANWAR LAL BHOOTRA conducted post-mortem examination on the body
of the deceased on 09 January 2013 and recorded his findings
on the
form marked (
GW7/15
)
hereby handed in as
Exhibit
“B
”
(c)
THAT
the deceased sustained no further injuries from the time he sustained
the said injuries on 08 January 2013 until the post-mortem

examination was conducted on his body as per paragraph 3 above.
(d)
THAT
the facts and findings of post-mortem examination as recorded by DR
BHANWAR LAL BHOOTRA as per
Exhibit
“B”
are both true and correct.
(e)
THAT
the cause of death was correctly recorded as:
“
GUNSHOT
WOUND OF ABDOMEN”
(f)
THAT
the affidavit in terms of section 212 (7) of Act 51 of 1977, by
Madimetja
P Maja
of the Forensic Pathology Services, Lebowakgomo, who received the
deceased body from
Constable
LT Ramoroka
on
the scene of crime and transported the deceased body from the scene
of crime to the Forensic Pathology Services, Lebowakgomo,
Exhibit
C
”
(g)
THAT
the authenticity and correctness of the contents of the following
documents are not in dispute and are hereby handed in by
agreement:
(i)
THAT
Constable
M.C Mokgotho
took swab on the scene and on the mountain, as
Exhibit
“D”
(ii)
Photo
album, photos 1-14 key to the photos of the scene, compiled by
Constable
M.C Mokgotho,
as
Exhibit
“E”.
[4]
THE EVIDENCE
Save for the exhibits,
“A”, “B”, “C”, “D”
and “E” mentioned in paragraph
3 above, there are other
exhibits which were tendered during the evidence of both the State
and defence. I shall deal with those
exhibits during the evidence
hereunder.
[5]
The State Case:
The first witness for the
State was
Mohube Judith Lekwadu
, who testified briefly as
follows: she was born at Ga-Mashishi where she resides. On 08 January
2013 at about 07:30 she was outside
her homestead washing clothes
when she saw two young male persons; one “white” and
another black passing by. These
two male persons passed her homestead
for about four times. The men went to the shop which is about
50meters from her homestead
and sat on the verandah of the shop.
Later she entered the house; when she looked at the shop those two
young male persons were
no longer there. She saw one of them go
around the counter of the shop and a gunshot was fired. After the
gunshot was fired the
two young male persons searched “Sekeyo”
(the deceased), who was the shopkeeper. Then two young males ran
towards the
mountain.
[6] “Sekeyo”
ran out of the shop holding his stomach to her homestead but she had
locked herself inside house. He then
ran to the donga where he fell
down. She then sent text message to the owner of the shop to tell him
that Sekeyo was shot at. She
did not attend the identification parade
at the police station but she can identify the two male persons. She
then pointed at the
accused as one of the two young males. She could
identify the accused as “
slender and white
”.
[7] Under
cross-examination it was put to her that she did not tell the police
in her statement that one of the young males was
“white”.
That she did not tell the police officer who took down her statement
that she was frightened. Further that
she did mention the clothes of
the young males in her statement but not in her evidence before
court. She stated that one of the
young males was dressed in a black
T-shirt and khaki pair of trousers and another one she just saw a red
T-shirt; but she cannot
say who was dressed in what. She could
identify the young males because of their clothes.
The young
males did not look at her and she did not focus on them.
It
was put to her that according to Tshepo Mashabela who made a
statement to the police one of the young males had sunglasses and
a
hat. Tshepo Mashabela also said that one of the men was wearing a
brown T-shirt with stripes. That those young men when they
were
running towards the mountain they were facing a different direction,
hence she could not see their faces. It was also put
to her that she
has eyesight problem. Her statement was handed in as
Exhibit “F”.
[8] The second State
witness was
Reading Mafereka Selala
, who testified briefly
that: he is the Sergeant in the SAPS, Mecklenburg. He was the initial
I/O in this case until 2014. He was
instructed by the Mecklenburg
Court to take the two accused to the Mecklenburg Hospital for their
blood to be drawn. One of the
accused has since passed on. He took
the accused to Dr. Lehoko, who is attached to Mecklenburg Hospital,
who drew their blood and
sealed the bottles in his presence. He took
the blood samples to the laboratory in Pretoria the same day. He
registered the bottles
in the SAPS 13 register under
448/2013.
The bottles were signed by W/O Makgata. The bottles had numbers: (1):
05D4BB1499MX
and (2):
05D4BB0470MX.
[9] Under
cross-examination it was put to him that the first statement differs
from the one he has made recently. That the numbers
on the bottles in
the SAPS 13 register as well in the statements he made do not refer
to any names of a person whose blood was
drawn. That according to his
first statement (A24) he sent the blood samples to the laboratory in
Pretoria on
17 October 2013
and in terms of the new statement
(A34) he took the blood samples to the laboratory on
23 October
2013
. That the collection kit does not have the names of the
person from whom the blood was drawn.
[10] A letter dated 20
January 2014 Exhibit “H”; A24 Exhibit “J” and
A34 Exhibit “J1”.
Collection kit Exhibit L1 and L2.
[11] The third witness
for the State was
Moshukutjwane Abednico Thobejane
, whose
evidence is briefly that: He is a constable stationed at Lephalale
SAPS. He has 9 years’ service in the SAPS. On 23
January 2013
he handled a Norinco firearm as per SAPS 13/31; while he was still
working at Mecklenburg SAPS. He received the Norinco
firearm from the
CSC and kept it in another safe. The Norinco was in the exhibit bag
seal number
PA400048533R
. On 25 February 2013 W/O Lesufi took
the
exhibit 31
firearm and
exhibit n012 projectile
. W/O
Lesufi said he was taking the evidence bag to Pretoria. There are two
numbers: (1): projectile-
FSCC-366782
and (2)
PA4000485338I
firearm.
[12] Under
cross-examination it was put to him that in his statement to the
police the firearm did not have the serial number. That
it was not
the only firearm that did not have the serial number. That another
witness stated in the statement that it was a pistol
Norinco. That
there is a statement to the effect that in the evidence bag there was
a
Norinco and live rounds.
That he does not know the
circumstances under which the Norinco came to the CSC. He was not
given the Norinco immediately after
discovery. That he is not the
only one who kept the keys and had access to the exhibits.
[13] The fourth State
witness was
Safira Mpho Mnisi
, whose evidence was that: she is
a Constable in the SAPS with 9years experience attached to
Mecklenburg Police Station. On 11 January
2013 while on duty she
received a projectile exhibit from the CSC Commander Captain Lesufi.
She signed for it from the
SAP13 12/2013
. She took the exhibit
to the strong room where firearms are kept. When she received the
exhibit it was in the seal bag. The seal
bag number was
FSCC-366782
.
[14] Under
cross-examination it was put to her that the incident occurred in
2013 but she only made her statement on 29 November
2016. That she
only received the projectile. The last time she saw the exhibit was
when she put it in the strong room. That she
did not indicate in her
statement what happened to the exhibit later. She does not know how
long the exhibit stayed in the strong
room and if other people had
contact with that exhibit. She did not mention it in her statement
that she received the exhibit from
Captain Lesufi. She does not know
how the exhibit got into the CSC. The exhibit exchanged many hands.
The Captain who gave it to
her must have registered it in the CSC
register.
[15] The fifth State
witness was
Makuduele Simon Lesufi
, who testified briefly
that: he is the W/O with 25 years’ experience attached to
Mecklenburg Police Station. On 09 January
2013 he was on duty and he
attended the postmortem at Lebowakgomo which was conducted by Dr.
Bootra. This Dr. Bootra removed a
“deformed” bullet from
the body of the deceased,
L152013 of CAS 81/1/2013
. He
received the projectile and sealed it in the evidence bag. He took
the exhibit and handed it in at the CSC and was registered
in the SAP
13 book as
12/2013
.
[16] On 25 February 2013
he received the exhibits from Constable Thobejane which were
registered under
SAP13 12/2013 and SAP 13 31/2013.
He sealed
them inside a seal bag. On 26 February 2013 he took the exhibits to
Pretoria. The seal numbers are: (1):
SAP 13 12/2013:-FSC-366782
and (2) SAP 13 31/2013:- PA4000485338R
. When he received the
exhibits they were in the seal bag which was tagged. The exhibit that
he received from Dr. Bootra was also
sealed inside the seal bag. The
projectile that he received from Dr. Bootra showed that it had
damage; it struck something. He
requested the seal bag from the LCRC
Lebowakgomo to put the projectile.
[17] Under
cross-examination it was put to him that the body which he observed
at the postmortem had a gunshot wound. That Dr. Bootra
removed the
projectile from the body and gave it to him. That Dr. Bootra did not
remove that projectile but the deformed bullet
which is different
from the projectile. That he was not trained about how to handle
exhibits; if was he could have gone to the
postmortem with the
evidence bag for any eventualities. That the postmortem report does
not mention which exhibit was packaged
and the evidence bag number.
He made the statement on 28 November 2016. The postmortem report does
not even reflect how the deformed
bullet was packaged. That Dr.
Bootra did not mention it in the postmortem report how the deformed
bullet was packaged and also
the CAS number was not reflected on the
postmortem report. That there is no evidence before court to the
effect that there is a
difference between the bullet and projectile.
He maintained that a deformed bullet and projectile are one and the
same thing.
[18] The sixth State
witness was
Mareologo Israel Morena
, who testified concisely
that: he is the W/O of 26 years’ experience attached to
Mecklenburg Police Station. On 09 January
2013 while on duty he
received an exhibit which was a projectile from Capt. Lesufi. This
projectile was in a plastic bag; which
had a number that he wrote in
his statement. He recorded the exhibit in the SAP13 book 12/2013 CAS
81/1/2013. The seal bag number
is FSCC-366782. After signing for it
he put the exhibit in the shelves of the safe in the Charge Office.
He does not know what
happened to it later.
[19] Under
cross-examination it was put to that he made his statement on 28
November 2013. The trial was previously scheduled for
30 May 2016. He
got the FSC-366782 number from his personal diary where he recorded
the FSC number on the date when he received
the exhibits. The Relief
Commander is always in possession of the keys to the safe. The last
time he saw the exhibits were in the
safe. W/O Lesufi did not tell
him who packaged the exhibit.
[20] The seventh State
witness was
Makoti Samuel Mampa,
whose evidence was that: he
was working for the SAPS as Captain attached to Mecklenburg Police
Station. On 13 January 2013 while
on duty he received an exhibit from
Captain Ngele. This Captain Ngele came to the CSC with the Norinco
firearm and three bullets
(ammunition) which were kept in a brown
envelope. He, Makoti Samule Mampa, registered the exhibit in the SAP
13 book as 31/2013.
He tagged and locked it in the safe; that was the
last time he saw the exhibit. The envelope that contained the exhibit
did not
have the seal number, but it was written CAS 81/1/2013.
[21] In
cross-examination: it was put to him that Abednico Thobejane
testified to the effect that he removed the firearm from the
CSC safe
on the 25 February 2013. This Thobejane found only the Norinco
firearm which did not have a serial number. That the firearm
was in
the safe for a period of a month. That Thobejane did not mention the
ammunition in his evidence. That there were no identification
marks
on the bullets.
However, he said the bullets and the firearm were
together in the same bag and number (this is according to his
knowledge).
That he put the bullets in the plastic bag; tie it to
the firearm which is already tagged.
The three bullets were not
collected from the safe to be sent to the ballistics
. His
response: Thobejane can sign for the firearm but not the bullets. He
was not telling the truth when he said he registered
the exhibits in
the SAP 13 book.
[22] The eighth witness
for the State was
France Ramoroka
, who testified concisely
that: he is a Constable with 10 years’ experience attached to
Westenburg Police Station. On 08 January
2013 he was attached to
Mecklenburg Police Station. He received a report that there was a
shooting incident at Ga-Mashishi village
which he attended. At the
scene he found Judith, the first state witness, who explained to him
that two boys entered the shop and
later she heard a sound of a
firearm. She saw the shopkeeper, Solomon, running out but he fell
down. The two boys who entered the
shop got out running towards the
mountain. She phoned the owner to report about the incident who came
and transported the injured
person to hospital. He saw blood in the
shop and rushed to the hospital but upon arrival he was informed that
the person was certified
dead. He decided to go back to the scene
where his colleague was busy looking for the suspects in the
mountain. He did not go to
the mountain as he was busy writing the
docket.
[23] There was no
cross-examination on this witness.
[24] The ninth State
witness was
Reckson Rantlagwe,
whose testimony was briefly
that:  he is a Constable with 10 years’ experience
attached to Mecklenburg police station.
On 8 January 2013 while on
duty at about 7h30am he attended a shop robbery at Bolebu shop
Ga-Mashishi. He was the driver of the
Police car BST 228BB and his
crew was Constable Ramoroka. At the shop he found that the doors were
open and the counter was turned
upside-down and there was blood on
the floor. He saw Judith who stays next to the shop. He asked her
what has happened. She told
him that there were people at the shop
but they ran to the mountain. That a certain Somalian national who
was the shopkeeper, was
taken to the hospital. Ramoroka searched for
the people in the mountain. He saw the print of All-star shoe and
blood on the mountain,
which information he gave to Ramoroka. He
contacted the CSC to call Constable Mokgotho of the LCRC. This
Constable Mokgotho took
the blood swabs on the mountain and at the
shop. He went to the hospital unfortunately the shop attendant had
died. The CSC contacted
Mr Maja to remove the corpse to the
government mortuary. He made the statement on 3 June 2013.
[25] Under
cross-examination: it was put to him that he did not include the
issue of All-star shoe print in his statement. He has
consulted with
the State advocate otherwise she would not have known that part of
his evidence is not included in his statement.
That if he pointed the
All-star shoe print to Constable Mokgotho and Constable Ramoroka they
would have included such in their
statements. That Constable Mokgotho
did not take the photo of the shoe print. That photo 5 and 6 are one;
photo 5 was taken at
distance whereas photo 6 was a close-up. That he
was denying the obvious things.
That according to Constable
Mokgotho it is Ramoroka who pointed out the scene to him
. It was
put to him that he saw blood on the rocks and the All-star shoe
print. His response was in the positive. He was not telling
the truth
in his evidence because he is unable to see the difference between
photo 5 and 6. That photos 5 and 6 show the blood
not the All-star
shoe print. That photo 7 and 8 are one.
[26] That the place which
is shown in the photo album on the mountain is one being photo 7. It
was put to him also that Constable
Mokgotho took the photos as shown
by Ramoroka. He did not show Constable Mokgotho the shoe print. The
only reason the State called
him was show how he found the scene. He
went to the hospital after he was informed that the deceased has been
taken there. That
Ramoroka stated in his evidence that he is the one
who went to the hospital.  When he was pointing the marks
Ramoroka was
at the shop. The counter was not turned upside-down but
goods were just shifted. That he was exaggerating his evidence. The
blood
on point “C” is not linked to anywhere with the
scene. That the scene of the crime is the shop. That in his statement

he did not mention that the scene start at the shop and end in the
mountain. His statement was handed in and marked
Exhibit “M”
.
[27] The tenth State
witness was
Alfred Molemo Lehoko,
who testified to the effect
that: he is medical practitioner working at a public hospital at
Mecklenburg Hospital. He has 19years
experience as a medical
practitioner. He recognises
Exhibits L1 and L2.
They are the
forms used when drawing blood from the patient. He signed the form
with
Reference 05D4BB0470
. The procedure is that: - the police
bring a patient to the hospital with a seal box. Inside the seal box
there is a vacutainer
with a needle. There is a test-tube attached to
it. There is also a paper where the doctor writes his details and the
details of
the police officer who brought the patient to the
hospital. There are other seals to close the box after the blood has
been drawn
from the patient. They start the process by requesting
permission from the patient to draw his/her blood; the patient grants
permission
by signing the form. If permission is granted they proceed
to draw blood. They then return the test-tube after filling it with
blood. Then he would write his details, also the police officer
writes his details. They then return the test-tube to the container.

The broken seals are put back in the container and they use the new
once to close the specimen. Everything is done in the presence
of the
patient. After completing the forms brought by the police the seals
are handed over to the police.
[28] The patient in this
case did not show any discomfort. On the second form his initials
appear; the number is 05D4BB1499 and
his practice number MP04885542.
The other form is very feint. The seal number is pre-printed.
[29] In
cross-examination: it was put to him that he does not have the
hospital file with him nor does he have the hand written
notes. That
he handles many forms of this nature every day.  That the only
thing that can help him remember the case is when
he looks at the
documents. That the only thing visible in Exhibit L2 is the
signature.
He cannot say who the patient was from whom the blood
was drawn is, (he admitted).
He did not testify as to what he did
with those forms. That if the person did not sign the form it means
he did not give permission.
L2 form does not show the date on which
it was completed.
[30] The eleventh witness
for the State was
Reginah Makhura
, who testified to the effect
that: she is a Captain in the SAPS attached to the Forensic Science
Laboratory with 10 years’
experience. She is the Senior
Forensic Analyst and Reporting Officer. She holds BSC in Medical
Science; Honours in Human Molecular
Genetics from MEDUNSA. She
analyses biological samples with the evidential material. She also
analyses the registered evidence.
She obtained training for 17years
in biological sciences. She analysed exhibits under CAS 81/1/2013
from Mecklenburg SAPS. She
made a report which is contained in her
Section 212 (4) affidavit. She received the exhibits from the I/O
sealed. If the exhibits
are not sealed they return them back. They do
not accept tempered exhibits. They compare the crime scene exhibits
with reference
samples.
[31] In this case it was
murder; so the crime exhibits were from the swabs with suspected
blood; that is the DNA from the swabs
of the suspected person. The
crime exhibits were tested for presumptive blood to check if there is
blood or not first. The reference
samples are not tested but they go
through the DNA. If they test positive the presumptive blood go
through the DNA system.
[32] In this case before
court they received the exhibits as follows: control samples with the
number:-
05D4BB1499MX from inventory of L Nkune; and
another  inventory :- 05D4BB0470MX from K.S. Moraba.
There
was another crime exhibit bag which had three swabs. They tested two
swabs and swabs A and C were taken to the DNA analysis
system; also
the swabs of the individuals were taken to the DNA.
Table 1 on
page 4 of the Section 212 (4) affidavit shows the 16 locations. The
STR will communicate whether the profile is male
or female. XY is
male and XX is female.
She analysed the swab "C”
which was contained in PA5000394953U.
She compared the
profile to reference samples S.L Nkune and K.S. Moraba. She compared
the samples to each other. The swabs “C”
and reference
samples of S.L.Nkune XY is a male and XY K.S.Moraba is also male.
All the 16 locations make the profile to
check if the profile of S.L
Nkune is excluded from the crime samples.
[33] The DNA swab “C”
is 14:16 has 15:15; the location of crime sample does not have the
15. The person is excluded
from the crime sample. K.S. Moraba was
compared to swab “C” it has XY 15:15 which means the
donor is male. The location
DNA of swab “C”, the
reference sample has 14:16 and location is 14:16 in all the
locations. K.S. Moraba in all the
locations match. She then made her
findings in the Section 212 (4) affidavit to confirm that the DNA
result of the swab “C”
matches the DNA result of the
reference sample. According to her information swab “C”
matches that of K.S. Moraba and
the reference sample from the scene
and from the person. The DNA was handed as
Exhibit “N”
.
On 20 January 2014 she wrote a letter
Exhibit “H
”
wherein she referred the I/O that the covering letter 21 October 2013
was wrong. It must be noted that in the letter dated
20-01-2014 she
remarked that “
be advised that the information concerning
exhibit identification as stated on the covering letter dated
21-10-2013 is incorrect.
The covering letter refers to 05D4BB0470M
and 05D4BB1499M; whereas the exhibit received are 05D4BB470MX and
05D4BB1499MX respectively
”.  The covering letter
serial numbers were incomplete. According to her it was a “
typing
error” because the only difference is the letter “X”.
The other numbers were the same. The omission of “X”
has no negative impact.
[35] Under
cross-examination: she was questioned about the numbers being 16 in
relation to the gender. It was put to her that she
did not do the
presumptive test. That she found the samples opened and she is not
the one who opened the exhibits. That the Forensic
Laboratory has the
Standard Operating Procedure which states,
inter alia
, that if
there is an error they have to return the exhibits or notify the I/O
in a letter. That the I/O must rectify the error
through an
affidavit. (
Her response: they compare them to the exhibits bag
and everything has to correspond.
) That according to the Standard
Operating Procedure it does not make provision for the analyst to use
his/her discretion but to
return the exhibits or notify the I/O
before she can proceed with the analysis. (Her response was that she
realised that it was
just one alphabet which was missing hence she
used her discretion to proceed with the analysis). That she did not
receive the affidavit
of Constable Selala the I/O because she did the
analysis before the error was rectified. That the reference blood
collection kit
L2 did not have the same numbers as the once she had.
[36] The Standard
Operating Procedure was handed in and marked
Exhibit “P”.
That according to her swab “C” was taken from the crime
scene. However, the according evidence before court it was
taken from
the mountain which is not the crime scene. That she compared the
exhibits with the swabs not from the crime scene. That
the blood on
L2 did not have the names of the patient; according to her the
profiles are very important to them and the names do
not really mean
anything. It was put to her that without the name the results will be
without the owner.
[37] The twelfth witness
for the State was
Lazarus Mahlathini Ngele
who testified
briefly that: he is a Lt-Col with 25years experience stationed at
Tubatse Cluster. On 18 January 2013 he was on duty
when he received a
call from his informer who told him that the suspect in the murder
and business robbery was around Steelpoort.
The informer told him
that the suspect was light in complexion and dressed in blue work
suit of Tubatse Ferrochrome. He went to
Steelpoort whereupon the
informer showed him the accused. He introduced himself to the accused
and produced his appointment card.
The accused introduced himself as
Stoffel Moraba. Lazarus Mahlathini Ngele informed the accused that he
was looking for him in
connection with the case. He read out to the
accused the Constitutional rights; i.e (a) the right to remain
silent; (b) the right
to his own lawyer and if he cannot afford one
he may be assisted with the lawyer at the State’s expense. (c)
He is not compelled
to make any admission or confess anything which
he might say will be used against him in court; (d) the right to have
family visitors
after arrest; (e) the right to be taken to court that
day; (f) the right to be released on bail or warning; and (g) not to
be compelled
to make any pointing outs. He was communicating with the
accused in Sepedi.
[38] He asked the accused
if there was something which he wanted to tell him. He received the
call Ranny Sonjica who is the relative
of the accused. This Ranny
Sonjica informed him that the firearm was at his grandmother’s
garden. On the 19-01-2013 he went
with W/O Mokoena to the homestead
of Ranny Sonjica‘s grandmother where they dug the firearm out
in the garden. They found
a firearm Norinco with no serial numbers
and 3 live rounds.  He took the firearm together with the three
live rounds and put
them in a brown envelope and went to Mecklenburg
SAPS where he requested the SAP 13 book to register the exhibits. He
tagged the
exhibits SAP 13 31/2013 under CAS 81/1/2013.
[39] Under
cross-examination: it was put to him that the information from Ranny
Sonjica that the firearm was brought by the accused
was not in his
statement. That even in the statement of Ranny Sonjica which was
obtained by him did not contain that information.
That it is
improbable that he could forget to write that important information
and three years later remember it. That according
to Ranny Sonjica he
is the one who retrieved the firearm and gave it to the police. That
accused denies that he spoke or made any
admission to him that he
knew about the firearm. That any admission or confession must be in
writing. That he should have charged
Ranny Sonjica for illegal
possession of a firearm. That at the scene there was no one who was
arrested.
Ballistic Report of
Lt.Col Nel was accepted in the record and marked Exhibit “R”.
[40] The thirteenth State
witness was
Molebeledi Frank Makgata
, who testified in short
that: he is the W/O with 25years experience stationed at Mecklenburg
Police station. On 17 October 2013
he was on duty when he received
exhibits from Constable Selala. The exhibits were two blood kits.
They were registered in the SAP
13 448/2013. They were packaged; each
had its own blood kit. He made a statement in which he wrote the
reference numbers: (1)
05D4BB1499MX and (2) 05D4BB0470MX.
[41] Under
cross-examination: he was asked if the two exhibits are comparable to
the numbers he has read out. Whether he sees them
for first time.
That he was called to give evidence to the effect that he did not
register the exhibits. That the exhibits were
not accompanied by the
forms, (L1 and L2). That it is for the first time he sees the forms.
(
His response is that when he received the two boxes from
Constable Selala he did not know what was inside the boxes
).
He was asked as to why he registered the blood samples if he did not
know what was inside. (He stated that it is how they
do it in the SAP
13 book). That if there was an error in the SAP 13 book he would
continue with that error. (
He said that he verified the numbers
before he signed for them)
. It was put to him that the numbers he
has read out are different from the L1 and L2.
[42] In re-examination:
he stated that the only difference is the letter MX on both L1 and
L2.
[43] The fourteenth State
witness was
Obed Mokwane Nkwane
, who testified to the effect
that: he knows the accused by sight as he used to see him around
Burgersfort town. He knows the accused
as Maboti. On 8-01-2013 he
received a call from his mother to the effect that the police were at
his homestead looking for him.
At that time he was at his
girlfriend‘s house at Ga-Motodi. He went home to find out why
the police were looking for him.
He then went to Mecklenburg Police
station to follow up on the message. He told the police that he was
at Ga-Motodi asleep. They
brought Kune to identify him and he told
them that he was his cousin. He told the police that he resides at
Ga-Mashishi. He made
a statement to the police in which he stated
what happened since morning. He was shown the statement and he
recognised the signature
on page 3. But he does not remember when he
signed it.
[44] It was put to him
that the statement was shown to him by the State counsel before he
testified. He said he read the statement
himself. He was satisfied
with that statement. However, he stated that the police did not write
the statement in his presence.
According to him the police asked him
what he knew has happened at Ga-Mashishi to which he responded that
he knew nothing. He stated
that the person who wrote the information
in his statement did not obtain it from him. It was put to him that
in his statement
he referred to the accused as Maboti Stoffel Moraba
and he confirmed that. But he does not know why the police wrote that
in his
statement. He confirms that he met with Maboti on 8-01-2013;
and he told the police that he met Maboti at Burgersfort. But he
denies
having told the police about the injury of Maboti.
The
application by the state to hand it in was postponed to the
9-12-2016.
He
continued to testify under oath: He admit that he made the statement
freely and voluntarily while in his sober senses.
[45] He stated that the
police asked him where he was staying and how they will contact him.
But he stated that what is contained
in his statement was not from
him. He said that he read the statement on Tuesday and Wednesday. He
confirmed that he signed the
statement on 8-01-2013. That he was not
threatened but they only showed him the last page to sign.
[46] The State
successfully applied that the witness be declared hostile in terms of
Section 190 (2) of the CPA.
[47]
Cross-examination by the State counsel following the order in terms
of Section 190 (2): he was asked what he told the police
and he
stated that he said to them that he was in Burgersfort. That if he
did not tell the police that he was in Burgersfort they
would not
have known. He responded by saying he works there. He was asked if it
was for the first time that he saw the police officer.
It was put to
him that it was him who told the police that Maboti was his friend.
It was put to him that in the statement it is
written that he was at
his girlfriend’s place at Ga-Motodi. It was put to him that he
gave the police officer his cellphone
number. But he does not have
the number of Maboti neither does Maboti have his number. It was put
to him that Maboti asked him
to help in relation to the robbery of
the Ethiopian guy. That he saw the finger of Maboti being injured. It
was put to him that
the police chose to write that he saw the finger
of Maboti being injured. It was put to him that he was protecting his
friend Maboti.
[48] Under
cross-examination by defence on his main evidence: he was asked if he
signed all the pages. Why he did not sign all the
pages. (
His
response was that he was shown only the last page to sign
). He
stated that he did not give the police the information contained in
his statement. Whether he told the police that he met
with Maboti who
told him about the robbery of the Ethiopian guy, but he denied that.
It was put to him that the accused cannot
cross-examine him because
he was not the person who gave the police that information. It was
put to him that the last page did
not have the contents of the
statement. It was put to him that the accused denies that he phoned
the witness on 8-01-2013. That
he denies having told him about the
robbery. That he did not meet with him on 8-01-2013. He denies that
he was injured on his finger.
He denies that he shaved on 8-01-2013.
[49] The fifteenth State
witness was
Mashakeng Steven Senong
, he testified briefly
that: he is Constable with 10 years’ experience attached to
Mecklenburg SAPS. He knows the witness
Obed Nkwane. On Tuesday the
8-01-2013 he attended a scene of robbery at Ga-Mashishi with other
police officers. While there he
received information that Obed Nkwane
was a suspect. He then drove to Obed Nkwane’s homestead but he
did not find him. He
left a message with the mother that he was
looking for him. Later in the evening he went to Obed Nkwane’s
place where he
found him. He questioned him about the robbery. He
obtained the statement of Obed Nkwane and wrote what Obed Nkwane told
him. He
also signed the statement in the presence of Obed Nkwane. He
gave the statement to Obed Nkwane who read it himself and explained

to Constable Senong what is contained in that statement. Everything
that he wrote in that statement was from the said Obed Nkwane.
He did
not threaten him but perhaps Obed Nkwane got threatened when he was
told that the people were suspecting him as one of the
robbers. He
would go to the police station where his finger prints would be
taken.
[50] He did not promise
him anything. He did not know that Obed Nkwane and the accused were
friends. He does not have any reason
to implicate Obed Nkwane. He
wrote down the statement on Tuesday 8-01-2013.
The statement of Obed
Mokwane Nkwane was handed as exhibit i.t.o section 3 (1) (c).
[51] Under
cross-examination it was put to him that he spoke to Obed Nkwane in
Sepedi. That but according to the statement of Obed
Nkwane he spoke
in English. In the statement of Obed Nkwane it is not written the he
spoke to Obed Nkwane in Sepedi and translated
that into English. That
he was wrong to say he spoke to Obed Nkwane in Sepedi. If it is not
like that then the first paragraph
of the statement is wrong. He
cannot expect somebody to understand the first paragraph of the
statement if he cannot understand
it whereas he is the author. It was
put to him that he was converting Sepedi into English. That the fact
remains certain parts
of the statement are problematic in the manner
they were written because he was converting Sepedi into English. It
was put to him
that his evidence is to the effect that he gave Obed
the statement to read for himself; though he was aware Obed speaks
Sepedi
and not English.
[52] That Obed gave him a
certain version in Sepedi and he converted it into English. That he
expected Obed to mention where he
was not satisfied. It was further
put to him that Obed did not inform him that he did not understand
anything. That Obed testified
before court in Sepedi. That the State
counsel insisted that Obed gave him certain information though Obed
denied that. It was
put to him that he was giving new evidence to the
effect that Obed read statement and translated it into English. He
had the information
that Obed was a suspect in this matter. He was
asked about the residence of Obed; the time he reached Ga-Selala
where Obed resides.
That according to Obed at 10h00am he was still
asleep at Ga-Motodi.
[53] It was put to him
that Obed gave him a suspicious face. That Obed changed his face as
he was afraid. That Obed was not a person
who was innocent. He was
told that Obed denies that he gave him certain information which is
contained in the statement. That Obed
testified to the effect that he
was given the last page. It was put to him that every page was not
initialed. That the content
of the statement ended on page 2. That
Obed denies that he received a call from his “friend Maboti”.
That he
denies that Maboti Stoffel Moraba was shot by Ethiopian
man at a shop at Ga-Mashishi. He denies that his friend Maboti
hang-up
when Obed told him that he will not help him. He can see that
Obed is someone who could not be trusted; because he denies that he

made a statement to him. That if Obed can come to court and deny that
he gave the police information it means he cannot be trusted
with the
contents of his statement. (His response was that he can be trusted
because what he was saying was the truth). It was
put to him that he
went to a suspect but he pointed a finger somewhere so that he should
be left alone.  If Obed had not told
him that accused was
involved he would have arrested Obed. It was put to him that accused
denies any involvement in the commission
of the offences.
[54] It was put to this
witness that accused will say that during 2013 he used to stay at
Ga-Mashishi at his uncle Enos Magale.
During his stay at Ga-Mashishi
he would fetch firewood at several places including the mountain. He
does not remember that when
he went to the mountain he got injured on
his body. But he stopped staying at Magale’s homestead during
2010 but in 2013
he would occasionally visit Ga-Mashishi.
[55] The State and
defence by consent handed in the following documents as Exhibits:
1.
Affidavit
i.t.o Section 212 CPA of Molefo Tshepo Motaung Exhibit “T”;
2.
Reference
collection kit of K.S. Moraba Exhibit “T1”;
3.
Reference
blood collection kit  of Sydney Nkune “Exhibit “T2”;
4.
Affidavit
i.t.o Section 212 of Tshepiso Nabo Mashilo Exhibit “U”.
STATE CASE CLOSED.
[56] The defence applied
for the discharge of the accused in terms of Section 174 CPA which
was refused. The reasons for the refusal
of the discharge at the end
of the State case will be shown in this judgment.
[58] The case was then
remanded to 13
th
to 17 January 2017 for continuation of
the trial.
[59] On 13 January 2017
accused was absent before court and the Warrant of arrest was
authorised but stayed in abeyance until 14
January 2017.
On 14 January 2017
accused testified in his defence and called one witness.
Defence case
[60] Accused testified in
his defence briefly that: he stays at Ga-Mashamothane. On 8 January
2013 he was at home sleeping. He knows
Ga-Mashishi village which is
about 35-36 kilometers away from Ga-Mashamothane. On 7 January 2013
he reported for duty at Booysendal
Mine at 10pm and knocked off the
following day on 8 January 2013 at 06h00. He arrived home at 8h00am
and slept. He was arrested
on 18/01/2013 at Steelpoort by Ngele who
took him to where Mr Selala and Mr Manyake where. He was put in the
police van driven
by Mr Selala. He was not told why he was arrested.
He was only told about the offence he allegedly committed at
Mecklenburg Police
station. At Booysendal Mine he was employed as a
dump-truck operator. At Ga-Mashishi village he has a friend there in
the name
of Enos Magale. In 2010 Enos Magale gave him the keys to his
shack to look after it. So, when he was off-duty he would go to
Ga-Mashishi
at that shack and sometimes even sleep there. He cannot
remember the dates on which he visited and slept at that shack of
Enos
Magale. At that shack there was no electricity; consequently he
would at times fetch firewood on the mountain to cook.
[61] The mountain is
about 500 meters from the shack of Enos Magale. He went several times
at the mountain to fetch firewood; so
he cannot remember the dates on
which he went to the mountain. He does not dispute that his blood was
found on the rocks of the
mountain in terms of the DNA results.
According to him he was once injured by a jigsaw while cutting
firewood, but the injury was
not serious. He did bleed but did not
pay attention where the blood was dripping. However, he does not
remember the date on which
he was injured.
[62] He does not know
Judith Lekwadu, the first state witness. He denies that Judith
Lekwadu saw him running towards the mountain
on 8 January 2013. His
wife and family members saw him when he arrived home on 8 January
2013. He knows the shop where the deceased
was shot as he used to
pass it when he was going to Enos Magale’s place. He denies
ever entering the shop where the offences
were committed. He admits
that the reddish substance on photos 9-10 was blood which was on the
rocks. He remembers the area where
the DNA profile was found because
he used to fetch firewood there. He did not cover the injured body
part as the pain was not serious.
[63] He denies that he is
a friend of Obed Nkwane. But he used to meet with him at Burgersfort
where they played dice. He does not
remember meeting with Obed Nkwane
on 8 January 2013 at Burgersfort. He did not even phone Obed Nkwane
as he does not have that
person’s numbers. At the time Lt-Col
Ngele arrested him at Steelpoort his rights were not explained to
him. The police vans
were parked behind the shops of Steelpoort. He
boarded the police van to Mecklenburg police station and was kept in
the holding
cells. While in the holding cells the police read to him
his rights; that is the time he knew what he was arrested for.
However,
nobody explained to him the notice of rights document.
[64]
He does not know anything about the firearm that was used to commit
the offences. He attended the identification parade whereupon
Judith
and Tshepo Mashabela attended. Photos were also taken of the
identification parade. However, no one pointed him out at the
parade.
The identification parade form was handed in as
Exhibit “U”
.
[65] Under
cross-examination: he was asked the whether he was staying at
Ga-Mashishi or that he was just checking on the shack of
Enos Magale.
His response was that he would sleep there sometimes for a day when
he was off-duty. He was asked about the person
who was using the
firewood while at Ga-Mashishi. He was asked about the relationship
with Enos Magale. According to him he knew
Enos Magale as they used
to play football together. Enos Magale was from Mabocha whereas he,
the accused, was from Ga-Mashamothane.
It was put to him that the
version that was put to the State witnesses was that Enos Magale was
his uncle.
He
was asked about the last time he went to Ga-Mashishi; his response
was that he does not remember; but he remembers that he was
injured.
It was put to him that he saw the blood coming out of his injured
body.
[66] It was put to him
that the State witness Senong testified to the effect that the
accused’s blood was seen on the mountain.
It was put to him
that Judith saw him passing the scene of crime. It was put to him
that Judith pointed him out in court during
her testimony. It was put
to him that he cannot confirm that his family members saw him asleep.
He was asked about his relationship
with Obed. It was put to him that
Obed made a statement to the police to the effect that the accused
called him on 8 January 2013
and he requested assistance from Obed
because he, the accused, shot a certain Indian man.( he disputed this
version).
[67] It was put to him
that Obed saw him at Burgersfort on 8 January 2013 and that he phoned
Obed. He was asked about the length
of service at Steelpoort; he
indicated that it was 2 months. It was put to him that Obed Nkwane
confirmed the incident at Ga-Mashishi.
That Obed Nkwane would not
have known about the incident if he was not told by the accused. It
was put to him that Ngele testified
to the effect that he explained
the rights of the accused at the time of his arrest. It was put to
him that he led the police to
Ranny Sonjica’s homestead where
the firearm was found. It was put to him that on 8 January 2013 he
committed the offences
at Ga-Mashishi. It was also put to him that
his blood was found on the rocks after he was seen running in the
direction of the
mountain.
(His response was that he does not deny
that because he used to go to the mountain).
[68] He was asked about
the identification parade and the persons who attended same.
According to him there were about five (05)
witnesses. It was put to
him that according to Judith, she did not attend the identification
parade. It was put to him that he
did not put a version to Judith
that she did not attend the identification parade. It was put to him
that Tshepo Mashabela did
not point out anybody at the identification
parade. It was put to him that the rights were explained to him.
[69] Accused called a
witness,
Tshepo Mamadia Mashabela
; the sketch of his evidence
is that: he resides at Ga-Mashishi village. He was on the list of the
State witnesses regarding this
case, though the State did not call
him as such. He made a statement to the police station regarding the
happenings of 8 January
2013 at Ga-Mashishi.
[70] On 8 January 2013 in
the morning he was at Ga-Mashishi. He was walking in the street with
Kagiso passing behind the shop of
the deceased. While walking he
heard the gunshot; immediately thereafter he saw the shopkeeper
running out of the shop holding
his stomach. Two male persons emerged
from the shop running. These two male persons passed him in the
street at a distance of about
two (02) meters, running towards the
mountain. However, he did not spot their faces. One of the male
persons was wearing a hat
and sunglasses; whereas another one was
wearing brown pair of trousers and a striped T-shirt. Their
complexion was light and black.
The one who was light in complexion
was slender and the other one was of a medium size. His statement was
handed in as
Exhibit “V”
.
[71] He attended the
identification parade at Mecklenburg Police station; however he did
not point out any person at that identification
parade because he did
not see the male persons’ faces. He saw Judith at the police
station on the date of the identification
parade but he does not know
why she was there. Accused was one of the persons who were on the
line-up for identification nonetheless
he did not identify him.
[72] Under
cross-examination: he was asked if he knew Judith and for how long he
knew her. His response was that they schooled together.
He was asked
if he knew the accused. He denied that he knew the accused. He stated
that he started to know the accused at court.
He was asked how far he
was when he first saw the two persons who ran passed him. He stated
that he saw them for the first time
at a distance of about 40 meters.
He confirmed that he saw the deceased holding his stomach. It was put
to him that when he heard
the gunshot he got scared. He was asked if
he saw the faces of the two men;
his answer was that he was afraid
to look at their faces.
He was asked as to what was Judith doing
at the time; his answer was that Judith was unable to enter her house
as she was trembling.
He was asked about Obed Mokwana and he stated
that Obed was his uncle. He was asked whether he attended the
identification parade
and what was Judith doing at the police
station. It was put to him that the blood of the accused was obtained
at the rocks of the
mountain. He denied knowing Enos Magale.
[73]
Questions by
Court
Q.
Where
were you specifically at the police station when you saw Judith?
A.
In
the offices
Q. What was Judith doing
at the police station?
A. I do not know.
Q. Did you see her do
anything?
A. No.
DEFENCE CASE CLOSED
COUNSEL’S
ARGUMENTS AND SUBMISSIONS
[74] Both counsel
submitted written heads of arguments and supplemented same with oral
submissions. The State submitted that the
first State witness, Judith
Lekwadu, was a single witness in relation to the identification of
the accused and that her evidence
should be treated with caution.
That the court should invoke the provisions of Section 208 of the
CPA.
[75] On the issue of
identification the State argued that the accused was properly
identified by Judith Lekwadu at the scene and
also in court. That her
evidence that the accused is light in complexion should be accepted
because it is corroborated by the accused’s
witness, Tshepo
Mashabela.
[76] That the accused was
connected to the offences through: (a) the firearm; (b) the DNA
results; and (c) the evidence of Obed
Nkwane. The court was referred
to the several authorities,
inter alia
, S v Mthetwa
1972 (3)
SA 766
; S v Mehlape
1963 (2) SA 29
(A) at 32; S v Mlimo
[2008] ZASCA 7
;
2008 (2) SACR
48
(SCA) para 13; S v W
1975 (3) SA 288
(N) Principles of Evidence at
477; S v Thebus And Another 2003.
[77]
The defence on the other hand submitted that on the issue of a
firearm; there is no evidence before court that the accused
took
Lt-Col Ngele to the homestead of Ranny Sonjica. That if such evidence
exists, it would have amounted to pointing out which
was
inadmissible, unless it was properly tendered. That if the police
went with the accused to Ranny Sonjica’s homestead
they would
have looked for the firearm. The court should consider Exhibit “Q”
which is the statement of Ranny Sonjica.
In that statement it is not
stated that the accused brought the firearm to that homestead. The
statement does not even mention
that the accused and the police were
at that homestead to look for the firearm. Instead Ranny Sonjica
states in Exhibit “Q”
that he is the one who dug
underneath the tree to find the firearm and gave it to the police.
[78] That the court
should take into account that Judith Lekwadu could not have properly
seen the perpetrators regard being had
to the distance she was from
the shop, which is about 50meters. That the person who would have
been able to identify the attackers
was Tshepo Mashabela as the two
young males passed closed to him at a distance of about 2-3 meters.
Moreover, it was submitted,
that Judith stated that she had eyesight
problem and without the assistance of glasses she does not see
clearly. That Judith was
exaggerating her evidence, because the
deceased who was shot at, sustained the injuries stated in the
postmortem report would not
have ran the distance mentioned by
Judith.
[79] That Judith
contradicted her own statement to the police regarding the clothes of
the perpetrators. It means she did not see
the perpetrators in front
but their backs only. That Judith was scared after hearing a gunshot
and locked herself in the house.
[80] Reference was made
of
S v Mahlalela
(396/16)
[2016 ZASCA 181
(28 November 2016)
para 23 which deals with suspicion.
[81] That it is common
cause the people who committed the offence ran towards the mountain.
However, there is no evidence as to
where in the mountain did they
run to. That the mountain is a public place and everyone is allowed
to go there. There is no evidence
of blood trail from the shop to the
mountain. In other words, there is no evidence linking the blood
found on the mountain and
the blood at the scene of crime, the shop.
[82] The court was
referred to
R v Blom 1939 AD
, with regard to inferential
reasoning and circumstantial evidence.
[83] That the accused
offered an explanation about his blood being found on the mountain.
That the State did not cross-examine the
accused on this aspect.
There is no evidence before court as to whether the blood was fresh
or not.
[84] With regard to DNA,
it was argued that the blood was not linked to the scene of crime.
That Captain Makhura did not follow
the Standard Operating
Procedures, Exhibit “P” which did not give her discretion
where there were discrepancies on
the exhibits.
[85] That there was
contradiction on the covering letter and the exhibits submitted to
her. The court was referred to
S v Phiri
[2007] ZAGPHC 337
;
2008 (2) SACR 21
(T)
dealing with irregularities on the labelling and packaging of
exhibits. It was argued that the seal numbers do not correspond.
Furthermore,
the swabs taken by Constable Mokgotho and the blood
drawn from the accused were not transported together to the
laboratory. The
court was referred to
S v Bamba (2008/14)
[2014]
ZASCA 219
(11 December 2014)
. The firearm was not properly tagged
but kept in an envelope at the police station. It is not known who
sent the firearm to the
ballistics and same applies to the
projectile.
[86] That evidence of
Obed Nkwane should not be considered as he disavowed his own
statement under oath.
[87] The court is
grateful to the participation and submissions of both counsel.
COMMON CAUSE ISSUES
[88]
Now I deal with the matter as a whole. The following issues are
common cause:
88.1. The deceased died
as a result of gunshot wound.
88.2. The projectile was
extracted from the body of the deceased.
88.3. The firearm Norinco
was found at the homestead of Ranny Sonjica, as per Exhibit “Q”.
88.4. This firearm was
linked to the projectile that was extracted from the body of the
deceased, as per the postmortem report and
the ballistic report,
affidavit of Lt-Col Nel, Exhibit “R”.
88.5. Accused’s
blood was found on the mountain as per the DNA results, Exhibit “N”
and the oral evidence of Regina
Makhura.
88.6. Nobody saw who shot
and killed the deceased.
88.7. The firearm as well
as the projectile were properly packed, numbered, sealed and
transported by W/O Lesufi to Pretoria for
forensic analysis.
88.4. The crime scene is
the shop, as per the affidavit of Mokgotho.
ISSUES FOR
DETERMINATION
[89] Whether the accused
was identified by the State witnesses as one of the persons who
committed the offences at the shop of the
deceased.
[90] Whether the evidence
of the State links the accused to:
90.1. the firearm that
was used to shoot and kill the deceased;
[91] Whether there was
blood trail from the shop to the mountain;
[92] Whether the
Exhibits, L1 and L2, and the blood swabs (i.e. blood from the
mountain) were properly packaged, labelled and sealed
when they were
transported to the laboratory;
[93] The effect of
incorrect labelling and packaging of exhibits.
LEGAL PRINCIPLES
[94]
Identification entails the act of identifying a person or object. It
is therefore imperative that an innocent person is not
held liable
for an incident he/she has not committed and equally to ensure that
the perpetrator is identified. The court in
S
v Charzen And Anothe
r
[4]
found that:
“
But, as
our courts have emphasised again and again, in matters of
identification honesty and sincerity and subjective assurance
are
simply not enough. There must in addition be certainty beyond
reasonable doubt that the identification is reliable, and it
is
generally recognised in this regard that evidence of identification
based upon a witness’s recollection of a person’s

appearance can be ‘dangerously unreliable’, and must be
approached with caution.”
[95]
In order for the person to be prosecuted for an offence, he /she must
be linked to the offence through evidence proven beyond
reasonable
doubt.
Snyman
[5]
in his work states that:
“
In
materially defined crimes, the question must always be answered
whether X’s act caused the prohibited situation or state
of
affairs or, to put it differently, whether there was a causal link
(nexus) between X’s conduct and the prohibited situation
(eg
Y’s death).”
[96]
Lirieka Meintjies-Van Der Walt
[6]
states that:
“
Each
article should be collected and packaged in such a way as to avoid
cross-contamination. The bags should be sealed with evidence
tape and
labeled with the brief description of what it purports to be, the
date, time, and signature of the person responsible
for collecting
and securing the evidence.”
APPLICATION OF THE
LAW TO THE FACTS
[97]
Was the accused
identified as the perpetrator of the offences?
The State witness
Judith’s evidence was to the effect that she saw the
perpetrators; that one of them is the accused. It is
indeed correct
that she was the only witness for the State who could be said to be
the eyewitness, in so far as the direct identification
of the accused
was concerned. It is common cause that she did not attend the
identification parade as confirmed by the SAPS 329
form Exhibit “U”.
[98] According to Judith
her homestead is about 50 meters from the shop of the deceased. She
saw the male persons passing by her
homestead for about three to four
times. At that time she was busy with her washing; hence she did not
pay much attention to them.
She became concerned when she saw the two
male persons seated on the verandah of the shop. She conceded under
cross-examination
that she did not see their faces; she could also
not give a clear account of their facial appearances. She admitted
that she has
eyesight problem; thus she uses glasses. Judith also
stated that she was scared after hearing the gunshot; which made her
to lock
herself in the house.
[99] She pointed out the
accused in the dock while she was testifying as the person who was
light in complexion and slender. In
contrast with the testimony of
Tshepo Mashabela whose unchallenged evidence was to the effect that
the two male persons passed
him at a distance of about 2-3 meters.
Tshepo Mashabela testified to the effect that he did not look
at the faces of those
two men.
[100]
The cautionary rules must be applied to Judith‘s testimony. In
R
v Mokoena
[7]
the court said that the provision should only apply when the single
witness is clear and satisfactory in every material respect,
has no
interest or prejudice, did not contradict himself or herself, does
not have previous convictions for dishonesty, had proper
opportunity
for observation, and so on. It is indeed so that accused is light in
complexion. But as to him being slender that is
very questionable,
because slender, refers to a person with a lean body built; more so
that conclusion involves comparison with
another person. It is my
considered view that the identification of the accused by Judith
vis-a-vis that of Tshepo Mashabela cannot
be relied upon.
[101] Tshepo Mashabela
gave a fair account of the events of 8 January 2013. He did not
commit himself to anything and with worthy
reasons. The two persons
were running and he did not see their faces. The principles of
identification as enunciated in
Charzen
’s case
are settled. I therefore find that the accused was not identified by
Judith as one of the persons who were at the
shop of the deceased on
8 January 2013.
[102]
Did the accused
possess the firearm that was used to commit the offences?
The
State argues that the accused took the police officer Lt-Col Ngele to
Ranny Sonjica’s homestead where the firearm was
hidden in the
garden underneath the pawpaw tree. Exhibit “Q” being
Ranny Sonjica’s statement which was handed
does not contain any
allegations that accused is the person who brought the firearm at
that homestead. Parenthetically, Lt-Col
Ngele is the officer who
obtained the statement of Ranny Sonjica. Lt-Col Ngele did not state
that he booked the accused out from
the holding cells to Ranny
Sonjica’s homestead to show him the firearm or where was the
accused at that time. It was the
evidence of Lt-Col Ngele that he
went with W/O Mokoena to dig for the firearm and they found it. This
firearm was clearly not found
in the possession of the accused. Ranny
Sonjica, like a reasonable citizen took the firearm to the police. I
must state that the
State’s evidence on this aspect is standing
on shaky ground. The court in
S
v Litako And Others
[8]
found that:
“
Inspector
Olebile Sereo, a ballistics specialist, testified about a Norinco
firearm which had been handed to him for investigation.
It appears
that all he had concluded was that the firearm operated normally
without any obvious defects. Captain Zachariah Makola,
also a
ballistics expert, testified concerning firearms and bullets that he
had received for ballistics testing. All of the evidence
that I have
just sketched was intended to link one or more of the accused to the
crime scene. But the chain evidence which sought
to link the firearms
and ammunition recovered to the ballistic tests conducted on them was
woefully inadequate. The evidence concerning
the ballistics testing
is conspicuously unhelpful. There is thus no acceptable ballistics
evidence linking any of the appellants
to the robbery in respect of
which they were charged. Before us, the State was constrained to
concede as much.”
[103]
Was
there was blood trail from the shop to the mountain which links the
perpetrators to the crimes?
The
State evidence as contained in the affidavit of Mokgotho, at the risk
of repeating, was to the effect that he took the blood
swab from the
floor, Exhibit “A”; blood from the deceased as control
sample, Exhibit “B”; and blood from
the rock at the
mountain, Exhibit “C”. However, Regina Makhura, the
laboratory analyst only analysed swab “C”
and the
reference sample, being the blood drawn from the accused. This means
the analysis was on the blood found on the mountain
and the blood of
the accused. That comparison obviously excluded the blood from the
floor which might have been from the shop.
[104]
The swab “C” has been accepted as the blood of the
accused; but does that mean it was the same blood which trailed

dripping from the shop to the mountain? Expert evidence to that
effect is lacking in this case. In
Forensic
Investigation: Legislative Principles And Investigative Practice
[9]
it is stated that:
“
The
method of indirect identification concerns physical evidence and
phenomena by which the identity of the offender and their part
in the
incident may be determined. Examples include physical evidence left
behind at the scene of incident by the offender (eg
fingerprints,
footprints, handwriting, tool impressions) and physical evidence
connecting the offender with the victim or the scene
of incident (eg
blood, semen, hair, fibers).”
105]
The accused accepted that his blood was found on the mountain as per
the evidence of Regina Makhura and her affidavit. But
the issue is
whether that blood is linked to the scene of crime. There is no
evidence adduced by the State during this trial to
the effect that
the blood in the shop, found on the floor and that found on the rock
was the blood of the same person. It is indeed
correct that the State
witness Rantlakwe testified to he saw some blood stains tracking to
the mountain. However, he is not an
expert witness to sufficiently
show that the same blood was found on the mountain. I will deal with
the explanation of the accused
below. In
Hiemstra
Criminal Procedure
[10]
it is stated that:
“
Chain-
So-called “chain evidence explains what happened to the exhibit
from the time it was despatched to the time the report
was received.
It is important that the chain be properly proved if it is not
admitted by the accused
”
[106]
In
Forensic
Investigation: Legislative Principles And Investigative Practice
[11]
it is stated that: s
“
The
investigator must always consider the DNA evidence in the context of
a case. In order to prosecute a case, the DNA evidence
must be
supported by other evidence
.”
[107]
Whether the
exhibits i.e. L1 and L2 together with the blood swabs were properly
packaged, labelled and sealed?
It
was the evidence of expert witness Regina Makhura that she received
the exhibits from Constable Selala as per the covering letter
dated
21 October 2013 labelled as 05D4BB0470M and 05D4BB149M. However,
according to her that labelling was incorrect; it was supposed
to be
05D4BB0470MX and 05D4BB1499MX. It is also common cause that Exhibit
“P” which is policy document of the Forensic
Laboratory
Biology Section where Regina Makhura is employed details the
procedure to be followed when analysing the exhibits. The
relevant
part of this Exhibit “P” is at
11.1
“Discrepancies
NOTE: No analyst
is allowed to change any details on exhibits or information received
(example; covering letter) by striking out
and initialing next to it.
Discrepancies must be highlighted and explained in the case file
diary of a case. If you open a case
with discrepancy, that case
should be handed over to case review.”
[108] The spirit of this
document, Exhibit “P” is instructive. There is no way it
can be said to be permissive. I cannot
accept the evidence of Regina
Makhura that the discretion she exercised was within her scope of
practice.
[109]
The court in
S
v Bernard
[12]
as per Gibson, J found that:
“
The major
question, that is whether the blood sample contained in kit box
HG/555/355 was that of the accused? The question is whether
the kit
box containing the blood drawn from the accused was or was not
tempered with? And whether the contents drawn by Doctor
Shiwedha from
the accused were still the same sample that was submitted to the
Forensic Science Laboratory by Constable Coetzee
who had taken it
from the safe at the police station? In laymen's language, has the
chain been proved to have been meticulously
safeguarded between the
drawing of the accused's blood sample and the submission of the
accused's blood sample to the Forensic
Laboratory at the Institute?”
[109]
Lirieka Meintjies- Van Der Walt
[13]
states that:
“
The
sealing, tagging, labelling and marking of the evidence add
credibility and control to the ability to identify the item. In
sum,
the chain of custody is used to prove who had contact with the
evidence; the date and time the evidence was handled; the
circumstances for the evidence being handled; what changes, if any,
were made to the evidence, and that the evidence has not been

tampered with or contaminated.”
[110] It is my considered
view that the correct and efficient labelling and packaging of
exhibits is crucial to the chain evidence.
Where there are gaps
as in this case the court cannot brush that incongruity.
[111]
Did the accused
give a reasonable and probable explanation
?
It
is trite that there is no duty on the accused to prove a case in a
criminal trial. The accused should just give a version that
is
reasonably and probably true.
[112] In this case the
accused had to explain the presence of his blood on the rock of the
mountain which was extracted by Constable
Mokgotho. He had to explain
to the court how his blood came to be on that mountain and what has
caused that blood. In his own evidence
the accused stated that he
used to stay at the shack of Enos Magale at Ga-Mashishi village.
Furthermore, that the shack of Enos
Magale was not electrified.
Therefore he had to go to the mountain to fetch firewood to cook.
This part of evidence is not gainsaid
by the State. He also mentioned
that on a day which he cannot remember he injured himself with a
jigsaw while cutting wood. This
evidence of the accused must be
refuted by the State with contrary facts and through
cross-examination. The accused went further
to state that on 8
January 2013 he knocked off duty at 6h00am and arrived home to sleep
at about 8h00am.  The court is not
required to be convinced that
the explanation of the accused is improbable. Rather the court must
find that the explanation of
the accused is false beyond reasonable
doubt.
[113] The accused is from
a village at Ga-Mashamothane. Ga-Mashishi is a rural area; villagers
do go to mountains to fetch firewood
even in this day and age. Can it
be said that the accused’s explanation is false? There must be
facts supported by evidence
under oath to enable the court to reject
the accused’s explanation as false. The State further submitted
that the court should
consider the evidence of Obed Nkwane. It is
true that Obed Nkwane testified as a State witness, but he disavowed
his own statement.
After he was declared a hostile witness by the
court he still stood firm to his evidence despite vigorous
cross-examination by
the State counsel.
[114]
The court in
R
v  Biya
[14]
Greenberg JA (as he then was) found that:
“
If there
is evidence of an accused person’s presence at a place and at a
time which makes it impossible for him to have committed
the crime
charged, then if on all the evidence there is a reasonable
possibility that this alibi is true it means that there is
the same
possibility that he has not committed the crime.”
[115]
Did the State
prove the case against the accused beyond reasonable doubt?
It
is trite that the onus of proof in a criminal trial rests on the
State. In
S
v Ambros
[15]
Dlodlo J held that:
“
I am of
the view that the issue of shifting onus is no longer
constitutionally permissible. My view is simply that the State bears

the onus of proof beyond reasonable doubt. Even if the accused did
bear the onus to prove prima facie that his presence in the
farm camp
was not coupled with intention to steal, his explanation that he went
there for purposes of firewood should have been
enough in my view.
”
[115]
The State relied on the evidence of identification, circumstantial
evidence of the DNA results. I have already found that
the
identification of the accused by Judith Lekwadu is doubtful. Though
Judith Lekwadu was convinced that the accused was the person
who she
saw passing next to her homestead, at the verandah of the shop and
later running towards the mountain. It is not only that
the
identifying witness has to be convinced and honest but the facts must
support her assertions. When comparing the evidence of
Judith and
that of Tshepo Mashabela with regard to probabilities; the scales
favour Tshepo Mashabela. This Tshepo Mashabela’s
evidence was
not controverted by the State in cross-examination. The court in
S
v Nnasolu And Another
[16]
restated the importance of cross-examination and quoted with approval
the judgment of Claassen J in
Small
v Smith
[17]
,
albeit in relation to a civil case:
“
It is, in
my opinion, elementary and standard practice for a party to put to
each opposing witness so much of his own case or defence
as concerns
that witness and if need be to inform him, if he has not been given
notice thereof, that other witnesses will contradict
him, so as to
give him a fair warning and an opportunity of explaining the
contradiction and defending his own character. It is
grossly unfair
and improper to let a witness’s evidence go unchallenged in
cross-examination and afterwards argue that he
must be disbelieved.
Once a witness’s evidence on a point in dispute has
deliberately been left unchallenged in cross-examination
and
particularly by a legal practitioner, the party calling that witness
is normally entitled to assume in the absence of notice
to the
contrary that the witness’s testimony is accepted as correct.
More particularly is this the case if the witness is
corroborated by
several others, unless the testimony is so manifestly absurd,
fantastic or of so romancing a character that no
reasonable person
can attach any credence to it whatsoever.”
[116]
Other than that Judith on her own evidence admitted that she did not
look at the two male persons at their faces and that
she has eyesight
problems. She did not have an opportunity of properly observing the
assailants. On the other hand the two male
persons passed closer to
Tshepo Mashabela but he could not identify the accused at the
identification parade. Dock identification
carries little weight
unless the witness has previously independently identified the
accused
[18]
.
[116]
It is so that circumstantial evidence may be stronger than direct
evidence. The court in
S
v Nkuna
[19]
found that:
“
There can
be no inference unless there are objective facts from which to infer
the other facts which it is sought to establish.
Sometimes these
other facts can be inferred with considerable certainty. If there are
no positive proven facts from which the inference
can be made, the
method of inferential reasoning fails and what is left is mere
speculation or conjecture.  Of course, the
strength of
circumstantial evidence will tend to vary depending on the cogency
and character of the circumstances. What needs to
be pointed out
however, is that when the evidence is abundant, such as in this case,
it may be equal to or even superior to direct
evidence.”
[117] However, in this
case before me the proved facts which are the DNA results have a
difficulty in connecting the accused to
the scene of crime. The blood
swab which was removed by Mokgotho from the floor was never compared
with the blood of the accused
that was found on the mountain. This is
the serious problem the State case is facing. For reasons I cannot
fathom, the blood exhibits
that were analysed are drawn from the
accused and the blood that was found on the mountain.
[118] At the closure of
the State case I refused the application for the discharge of the
accused in terms of Section 174 CPA and
I reserved my reasons. The
State had produced a
prima facie
case that the accused
appeared to be one of the two male persons who attacked the deceased
and that his blood was found on the
mountain. The accused then had to
give an explanation pursuant to that evidence. During
cross-examination it was not clear as to
what was the version of the
accused who was faced with that evidence. For instance, the accused
did not clearly state where he
was on the 8 January 2013, whether he
was injured while at Ga-Mashishi or not. Therefore I had to refuse
the application for his
discharge.
[119] It is the duty of
the State to prove the track of blood from the shop to the mountain
where the assailants ran to. Absent
that blood trail evidence it is
my considered view that the DNA results do not assist the State case.
[120] The incorrect
labelling of the exhibits that were sent to the laboratory for
examination add salt to the wound of the State.
As I have already
stated above the State is under the duty to prove the chain evidence.
[121]
I align myself with the decision of the court in
S
v Mafiri
[20]
where Mthiyane JA (as he then was) stated that:
“
Before
dealing with the above grounds it is necessary to re-iterate the test
to be applied when assessing the explanation given
by an accused in a
case such as this. The following has been said in this Court that:
“‘
There
is no obligation upon an accused person, where the State bears the
onus, “to convince the court”. If his version
is
reasonably possibly true he is entitled to his acquittal even though
his explanation is improbable. A court is not entitled
to convict
unless it is satisfied not only that the explanation is improbable
but that beyond any reasonable doubt it is false.
It is permissible
to look at the probabilities of the case to determine whether the
accused’s version is reasonably possibly
true but whether one
subjectively believes him is not the test. As pointed out in many
judgements of this Court and other courts
the test is whether there
is a reasonable possibility that the accused’s evidence may be
true.”
CONCLUSION
[119] It is my considered
view that the though several witnesses were called by the State in an
attempt to prove the case against
the accused, the efforts were
thwarted by the manner in which the evidence was adduced.
Consequently, the State failed to prove
the case against the accused
beyond reasonable doubt.
ORDER
The accused is not found
guilty and discharged on all counts.
_________________
M.P.CHIDI
A.J
ACTING JUDGE OF THE HIGH
COURT
On behalf of the
State       :           Adv

N.C. MOLEPO
Instructed
by

:          DPP,
Polokwane
On behalf of the Accused
:           Adv
M.P.LEGODI
Instructed
by

:          Polokwane
Justice Centre
Date of
judgment
:           17

January 2017.
[1]
Act 105 of 1997, as
amended.
[2]
Act 51 of 1977, as
amended.
[3]
Act 60 of 2000, as
amended.
[4]
[2006] 2 All SA
371
(SCA), par 11.
[5]
CR Snyman
“
Criminal
Law
”
6ed LexisNexis (2014) at 80.
[6]
Lirieka
Meintjies-Van Der Walt “The chain of custody and formal
admissions” South African Journal of Criminal Justice
(2010) 3
at 373.
[7]
1932 OPD 79.
[8]
2014 (2) SACR 431
(SCA) at 437 par 22.
[9]
Rudolph Zinn
et
al
“Forensic
Investigation
Legislative Principles and Investigative Practice
”
ed (2015) at 63.
[10]
A Kruger
“Hiemstra’s Criminal Procedure” LexisNexis ed
(2016) at 24-31.
[11]
Ibid 118.
[12]
(CC 07/2002)
[2005] NAHC 48
(19 August 2005).
11
Ibid at 376-377.
[13]
L M Van Der
Van Der Walt “The chain of custody and formal admissions”
(2010) SACJ 3
, 376.
[14]
1952 (4) SA 514
(A) at 521c-d
[15]
2005 (2) SACR 211
(C) at 215 par 6.
[16]
2010 (1) SACR 561
(KZP),para
[17]
1954 (3) SA 434
(SWA) at 438E-F.
[18]
S v Tandwa
2008
(1) SACR 613
(SCA) at 652.
[19]
2012 (1) SACR 167
(B) at 171 pars 124-125.
[20]
2003 (2) SACR 121
(SCA) at 125 para 9.