About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2017
>>
[2017] ZALMPPHC 48
|
|
Mulaudzi v S (A083/2015) [2017] ZALMPPHC 48 (10 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO PROVINCIAL DIVISION, POLOKWANE)
CASE
NO: A083/2015
Reportable
Not
of interest to other judges
Revised.
10-5-2017
In
the matter between:
MKUNDEYI
SAMUEL
MULAUDZI
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
KGANYAGO
J
[1] This appeal is
directed against both convictions and sentence.
The
appellant was convicted by the Regional Magistrate Court Giyani on
one count of murder read with the provisions
Section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
. He was sentenced to 15 years
imprisonment.
[2]
The question which this court must determine is whether the appellant
has been correctly convicted of the charge he was facing
and also
whether the sentence meted to him is appropriate.
[3]
The background of the facts are as follows: On the night of the 2
nd
July 2007 the appellant came to the deceased homestead. He found the
deceased and her daughter cooking beans. The deceased and
the accused
were in a love relationship. Later the deceased and the appellant
want to another hut to go and sleep. The deceased
daughter and her
child also went to another hut to go and sleep.
[4] At midnight the child
of the deceased daughter started crying whilst comforting the child
to stop crying, she heard of voice
of someone trying to talk but the
voice was not coming out. She then fell asleep. In the morning she
was woken up by one lucky
who is their neighbor.
When
she got out of her hut, she found the deceased lying at the door of
her hut naked only wearing her panty. On inspection of
the deceased,
she found that she was dead and there was white foam coming from her
mouth.
[5]
According to the appellant, during the night of the 2
nd
July 2007, he went to bed with the deceased. Whilst they were asleep,
the deceased started coughing and also seeming as if she
was
struggling to breath. The deceased then went outside the hut. He then
went to knock at the door of the hut, wherein the deceased
daughter
was sleeping in order to report the incident, but there was no
response. He thereafter decided to leave the deceased homestead
as he
was scared. He denies having killed the deceased.
[6]
The trial court accepted the state version and rejected the version
of the appellant. The appellant was found guilty as charged.
In
rejecting the appellant’s version, the trial court relied on
the appellant’s warning statement and the deceased
post mortem
report. The appellant’s as admissible after a trial within a
trial. However, when the appeal was argued before
this court, the
appellant warning statement and the deceased post mortem report did
not form part of the record before this court.
Also the full record
of the trial within trial did not form part of the record full
record. This court was informed that
the missing exhibits and
full record of the trial within trial court not be found and were
also unable to reconstruct that. From
the transcribed record, it
seems according to the post mortem report, the cause of the deceased
death was strangulation.
[7]
In this case, there is no eye witness and the state case was based on
circumstantial evidence. There is nothing with admitting
circumstantial evidence. In some instances, circumstantial evidence
is more convincing than direct evidence.
[8] In the case of
Jantjies v S (871/13)
[2014] ZASCA 153
at paragraph 14 the
court stated:
“
It
is common cause the crux of this matter is about drawing a reasonable
inference from proved facts. (See
R
v Blom
1939 AD 188
at 202-203
where
Watermeyer
JA
observed that:
In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
(1)
The
inference sought must be consistent with all the proved facts. If it
is not, the inference cannot be drawn.
(2)
The
proved facts should be such that they exclude every reasonable
inference from them save one sought to be drawn. If they do not
exclude other reasonable inferences, then these must be a doubt
whether the inference sought to be drawn is correct”.
[9]
In
Mahlalela
v S (396/16)
[2016] ZASCA 181
(28 November 2016) at paragraphs 15 and 16 the court observed that:
“
[15]
The difficulty is that proved facts envisaged in Blom are facts
proved beyond reasonable doubt. Intermediate inferences, too,
must be
based on proved facts. Inferences may not be drawn from other
inferences. See the article by
Nicholas
AJA
in (E Khan (ed) Fiat Justitia Essays in memory of
Olive
Deneys OD Schreiner (1983) at 312
.
[16]
Simply put, circumstantial evidence provides a basis from which the
fact in dispute can be inferred. The salient question to
be answered
is whether the appellant was guilty of the crimes committed beyond
reasonable doubt. All circumstantial evidence depends
ultimately upon
facts which are proved by direct evidence.”
[10]
In the present case, the common cause and proved facts are that on
the night of the 2
nd
July 2007, the appellant want to sleeps with the deceased who was his
lover in a separate hut from that of the deceased daughters.
It is
also not in dispute that the deceased was found the following day
dead next to the door at her hut naked wearing only her
panty. When
the deceased was found, the appellant has already left the deceased
homestead. There is no one to shed light as what
has happened in the
deceased hut until the appellant left, except the appellant’s
version.
[11] According to the
appellant, as they were sleeping, the deceased starting coughing and
acting as if he was running short of
breath. He went out of the hut
they were sleeping in together with the deceased and went to knock at
the deceased door to report
the incident but there was no response.
As he was scared, he left the deceased homestead.
[12] However, according
to the State the post mortem report state that the cause of the death
was strangulation and that the appellant
was the last person to be
seen with the deceased, and therefore should be held responsible for
the death of the deceased. That
postmortem report is now missing and
this court is unable to satisfy itself that indeed the cause of death
was strangulation.
[13]
The trial court had also relied on the appellant warning statement in
convicting the appellant. During the trial, the appellant
has
objected to the admissibly of his warning statement as evidence. The
appellant’s warning statement and the full record
of the trial
within trial are missing and does not form part of the record of the
appeal. It is therefore difficult to determine
whether all the
requirements for the admissibility of that statement has been
complied with. However, even if the appellant’s
statement is
missing, from what was read into record after the court has declared
if admissible, it does not seem that the appellants
had admitted any
guilt. He has stated the same evidence that the deceased started
coughing. What the trial court has relied upon
was the contradictions
that occurred in his evidence under oath during the trial and what
appears in the warning statement.
[14]
As stated in Mahlalela’s case supra, circumstantial evidence
provides the basis from which the fact in dispute can be
inferred.
Inferences must still be drawn from proved facts. It is trite that
there is no duty on an accused person to tender any
evidence, but
once he/she decide to testify what the court must determine is
whether the version presented is reasonably possibly
true. The court
does not have to be convinced that every detail of an accused version
is true. The test to be applied in any particular
case depends upon
the nature of the evidence which the court has before it. Some of the
evidence might be found to be false, some
of it might be found to be
unreliable, and some of it might be found to be only possibly false
or unreliable, but none of it may
simply be ignored (See
S
v Meyden 1999(1) SACR 447(W).
[15] In the present case
the inference drawn by the trial court was based more on the
contradictions on the appellant testimony
and what he has stated in
his warning statement. However, what is more disturbing in this case,
is the role which the trial Magistrate
has played in this case.
The trial Magistrate has
clearly taken the role of the prosecution.
There
is nothing wrong with the court asking clarifying questions.
[16] In the case of
Maliga v The State (543/13)
[2014] ZASCA 161
(01
October 2014) on paragraph 19 the court observed that:
“
Section
35(3) of the Constitution compels presiding officers and indeed all
officers of court to play a role during the course of
a trial in
order to achieve a fair and just outcome. As was said in Hepworth at
277(supra) a criminal trial is not a game where
one side is entitled
to claim the benefit of any omission or mistake made by the other
side, and a judge’s position in a
criminal trial is not merely
that of an umpire to see that the rules of the game are observed. A
judge’s note is to see that
justice is done.”
[17]
In the present case the presiding Magistrate was not merely asking
clarying questions but has taken the note of the prosecution.
It was
clear that the presiding Magistrate was supplementing the evidence of
the state in order to prove the guilt of the accused.
In my view, the
way the trial Magistrate was questioning the witness and the accused
has compromised his objectivity. He was eliciting
answers that would
prove the guilt of the appellant having realized that the state has
failed to do so. Counsel for the respondent
has conceded that the
presiding Magistrate had taken the role of the prosecution.
[18]
Had the presiding Magistrate not played the role of the prosecution,
there was no sufficient evidence to convict the appellant.
Consequently in my review, the way the presiding Magistrate has
handled the trial, has resulted in the appellant not receiving
a fair
trial as enshrined by Section 35 of the Constitution. The conviction
therefore falls to be set aside. It follows that the
sentence should
also be set aside.
[19]
Counsel for the respondent is of the view that this matter should be
referred back to the trial court to start
de
novo
.
The appellant was sentenced on the 13
th
July 2010 for fifteen years. He has already served almost half of his
sentence. In my view, if the matter is referred back to the
trial
court to start de novo, it will be prejudicial to the appellant. It
is the therefore, not in the interest of justice not
refer this
matter back to the court a quo to start
de
novo.
[20]
In the premises, the appeal is upheld.
[21]
The following order is proposed:-
21.1. The appeal is
upheld and the conviction and sentence are set aside.
_________________________
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA LIMPOPO PROVINCIAL DIVISION, POLOKWANE
I concur.
_________________________
KGOMO
J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA LIMPOPO PROVINCIAL DIVISION, POLOKWANE