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[2017] ZAGPPHC 64
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Babuli and Others v National Director of Public Prosecution and Another (CC32/14) [2017] ZAGPPHC 64 (24 February 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
GD
CASE NO: CC32/14
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between -
KEOBAKILE
F
BABULI
Appellant
1 (Accused 3 in court a quo)
ITUMELENG
J MOLEBATSI
Appellant
2 (Accused 4 in court
a quo)
WILLIAM
LESOLE MALEFO
Appellant
3 (Accused 5 in court
a quo)
KHOTSO
BENNET KADI
Appellant
4 (Accused 6 in court a
quo)
and
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTION
Respondent
1
DEPUTY
DIRECTOR OF PUBLIC PROSECUTION,
NORTH
GAUTENG,
PRETORIA
Respondent
2
JUDGMENT
STRYDOM,
AJ
[1]
During the early morning hours of 14 December 2012 and at or near
Alabama, in the district of Klerksdorp, Mosimaneotsile David
Chika
was shot and murdered outside his house. The four appellants and
co-accused were arrested and, in relation to the events
described
above, were charged with a contravention of section 18(2)(a) of the
Riotous Assemblies Act, 17 of 1956, i.e. a conspiracy
to commit
murder, and with murder, read with the provisions of
section 51(1)
of
the
Criminal Law Amendment Act, 105 of 1997
. Of the eight accused
that stood trial, six were convicted, including the four appellants
who were accused 3, 4, 5 and 6 respectively,
in the court a
quo.
They were convicted on both counts as was accused 1. Accused 7
was only convicted on the murder count. Accused 2 and 8 were
acquitted
after the State's case was closed pursuant to an
application in terms of section 174 of the
Criminal Procedure Act 51
of 1977
.
[2]
The first and second appellants were sentenced to effective
imprisonment for 15 years and 18 years respectively, and the third
and fourth appellants were both sentenced to life imprisonment.
[3]
The four appellants applied for leave to appeal to the court a
quo
but leave to appeal against their convictions and sentences was
refused. On 17 June 2015 the Supreme Court of Appeal granted the
appellants leave to appeal to this court against their convictions
and the sentences.
[4]
At the hearing of the appeal before this court, the appellants
applied for condonation for the late filing of their heads of
argument.
Such condonation was granted.
[5]
In respect of the conspiracy and murder charges it was alleged in the
indictment, read with the summary of substantial facts, that
the
deceased was the regional secretary of Dr KK Kaunda District
Municipality and a member of the African National Congress (ANC).
He
was responsible for compiling a list of nominees who were supposed to
attend the ANC national conference to be held in Mangaung
starting on
15 December 2012. The appellants and the other accused, excluding
accused 7, were unhappy with the nomination list
drawn by the
deceased of delegates who were supposed to attend the conference. As
a result of their unhappiness, meetings were
held to discuss the
elimination of the deceased. The State alleged that accused 7 was the
person responsible for firing the shots
from his licenced firearm
that killed the deceased. The State averred that all the accused
acted in the furtherance of a common
purpose in the commission of the
murder offence and for purposes of the conspiracy count it was
alleged that certain meetings were
held before the deceased was
killed, during which it was discussed how and when the deceased would
be killed.
[6]
Considering the judgment of the court a
quo
the appellants were principally convicted on
the evidence of Sambeko Simphiwe Mpandana (Mr Mpandana) and Cynthia
Mpho Tlako (Ms
Tlako) and pursuant to extra-curial statements made by
accused 1 and 7. These witnesses were single witnesses concerning
their
evidence and the court a
quo,
after
reference was made to the cautionary rule applicable when the
evidence of a single witness is considered, accepted their evidence.
The court a
quo
found
that there existed corroboration for their versions on the totality
of the evidence.
[7]
Accused 1 and 7 made extra-curial statements to the police in which
they implicated themselves as well as the appellants in
the
commission of the offences. The court a
quo
placed some reliance on the contents of these
statements to find corroboration for the version of Ms Tlako and to
conclude that
the appellants together with the other accused
conspired to kill the deceased. That this was done is evidenced by
the following
statements in the judgment of the court a
quo
made in relation to all accused that were
convicted:
"Evidence
of the statements and pointing out made by accused 1 and
7
respectively,
will be considered together with all the evidence presented."
and
"The
plan that was agreed upon according to the statement of accused No. 1
was
to
employ the ser.1ices of
a
hit man
to kill the deceased. This plan,
as
it will
become clear hereafter, was ultimately implemented. Therefore accused
1,
3,
4,
5
and 6
are guilty on count 1."
[8]
Before dealing with the evidence of Ms Tlako and Mr Mpandana to
establish whether their evidence could be accepted to convict
the
appellants, the reliance of the court a
quo
on
the extra-curial statement of the co-accused to convict the
appellants should be considered.
[9]
Section 219(A)
of the
Criminal Procedure Act, 51 of 1977
, expressly
provides that
"Evidence
of any admission made extra-judicially by any person in relation to
the commission of an offence shall, if such admission
does not
constitute
a
confession
of that offence and
is
proved
to have been voluntarily made by that person, be admissible in
evidence against him in criminal proceedings relating to that
offence: Provided
... "
[10]
The wording of this section cannot be interpreted to mean that
admissions made extra-curially by a co-accused can be relied
upon for
the conviction of another accused. Further, our Constitution does not
permit the admission of an extra-curial statement
by an accused
against a co-accused as it infringes upon an accused's fundamental
rights which are protected by the Bill of Rights.
See
S
v Mhlongo and S v Nkosi
2015 (2) SACR 323
(CC). The Constitutional Court in this matter also confirmed the
correctness of the decision of the Supreme Court of Appeal in
S
v Litako
&
Others
2014 (2) SACR 431
(SCA). In this matter the
court rejected the notion that an extra curial statement of an
accused could be admitted against
another accused in terms of section
3 of the
Law of Evidence Amendment Act, 45 of 1988
. It overruled its
previous decision in S v Ndhlovu and Others
2002 (2) SACR 325
(SCA)
where an extra-curial statement of one accused was admitted in terms
of
section 3
against another accused. The court in S v Litako
supra
at paragraph [67] as part of the
ratio
decidendi
of the decision found that an
extra-curial confession or admission of one accused is inadmissible
against another accused. The court
found as follows:
"Considering
the rationale at common law for excluding the use of extra-curial
admissions by one accused against another, it
appears to
us
that the interests of justice are best served
by not invoking the Act for that purpose. Having regard to what is
set out above,
we are compelled to conclude that our system of
criminal justice, underpinned by constitutional values and principles
which have,
as
their
objective,
a
fair
trial for accused persons, demands that we hold, section 3 of the Act
notwithstanding, that the extra-curial admission of one
accused does
not constitute evidence against
a
co-accused
and
is
therefore
not admissible against such co-accused.
"
[11]
The common law position has thus been restored in our law of evidence
and this court, not only agrees with the pronounced legal
position,
but is bound by the decisions referred to herein above.
[12]
I n S v Litako
supra,
at paragraph [65], and S v Mhlongo
supra
at paragraph [39] references were made to an exception to the
rule to exclude the extra curial statements of co-accused. The
exception relates to
"executive statements"
by an
accused that may be admissible against a co-accused if it were made
in the furtherance of a common purpose or conspiracy.
This is not
applicable
in casu
as the statements which the court a
quo
relied upon in his judgment were statements in the form of a
narrative of events that already took place. Moreover, it was found
in S v Mhlongo
supra
at paragraph [39] that-
"There
must be other evidence (aliunde) to establish the existence of
a
common purpose before the statements can be
taken into account."
[13]
Accordingly, any reliance the court a
quo
placed on the
extra-curial admissions and statements of accused 1 and 7, which were
not confirmed by them in court, to convict the
appellants was wrong
in law and will not be considered by this court to ascertain whether
the State has proven beyond reasonable
doubt the guilt of the
appellants. This court will have to consider the admissible evidence
to establish whether the convictions
of the court a
quo
should
be sustained.
[14]
The court a
quo,
correctly
in my view, relied on the extra-curial statements of accused 1 and 7
to convict these accused. In the statement of accused
7 he admitted
he shot the deceased. Moreover, accused 7’s licenced firearm
was by way of ballistic evidence connected to
the killing of the
deceased. This is an important aspect as, apart from the contents of
the statement of accused 7, there exist
no other evidence linking
accused 7’s actions to that of the appellants.
This
court should now consider the remaining evidence to consider whether
the appellants were correctly convicted on the conspiracy
and murder
counts.
Mr
Mpandana testified that he was a member of the ANC. He knew the
appellants and on 13 December 2012 he had met with the first.
third
and fourth appellants at Shoprite. The fourth appellant had told him
that the deceased must
"go out'.
He testified that he did
not know whether this meant that he must go as secretary, be killed
or just be removed from his position.
The court
a quo
specifically
clarified the interpretation of the phrase
"go out
and
formally recorded that it meant that the deceased must
"come
out'.
The court a
quo
held that what the fourth appellant
apparently told Mr Mpandana did not advance the State's case but the
court
a quo
accepted his evidence more specifically that he
saw the first, third and fourth appellants together at Shoprite on 13
December 2012
during the course of the morning.
[17]
The evidence of Mr Mpandana further revealed that he was at some
stage accused by the police as having killed the deceased.
It is also
common cause that he wanted money for his testimony and claimed an
amount of R250 000 for repeating his statement in
court. In his
statement to the police it is noted that he stated that the fourth
appellant said to him that the deceased must be
killed. He denied in
court that this is what he told the police. He insisted that he only
said to the police that the fourth appellant
told him that the
deceased must
"go out.
When
confronted with the discrepancy between his testimony and his
statement he said that the statement was incorrect.
[18]
Considering that Mr Mpandana was a single witness concerning the
meeting at Shoprite, the court a
quo
erred
in finding that this evidence was satisfactory in all material
aspects and could be accepted. His evidence materially differed
from
his statement he made to the police. When he was consulted before he
testified in the court a
quo
he
still insisted that he wanted money as a reward for repeating his
evidence contained in his statement. It then later transpired
that he
did not repeat the contents of the statement but that the fourth
appellant said something in Shoprite which was not specific
relating
to the killing of the deceased. In my view, the court a quo could
have placed no reliance on the evidence of Mr Mpandana.
Evidence of
any witness who expects a reward for providing his or her testimony
in court should be considered with circumspection.
The reason is
obvious. The reward may provide motivation to state that which the
promisor of the reward would like a witness to
say which may be
untruthful. Moreover, even if his evidence was accepted it did not
advance the state's case. except that it to
some extent, contradicted
the alibi defences of the first, third and fourth appellants.
[19]
For purposes of considering this appeal this court is then left with
only the evidence of Ms Tlako. This court must consider
whether the
court
a
quo's reliance
on her evidence was legally tenable to sustain a conviction in
relation to any one of the appellants.
[20]
Ms Tlako testified that she knew the appellants but had only met the
second appellant on 11 December 2012. She testified about
three
meetings attended by the appellants on 11, 12 and 13 December 2012.
She testified that on 11 December 2012 she had been involved
in
protest action concerning the removal of shacks. During a meeting
under a tree the second appellant had spoken about the people
who
were supposed to be killed. According to her comrade Cheka was one of
the people that he said had to be killed.
[21]
On the next day during the morning of 12 December 2012 she met
the appellants and accused 1 in the yard of a school. She overheard
the second appellant telling accused 1 that they should meet accused
8 at River Lodge on the next day to finalise their plan to
kill Mr
Cheka.
[22]
She then testified that on 13 December 2012 one Moteng and Mokete
came with accused 2's car to pick up accused 1. She then
went with
them to River Lodge. They arrived there at approximately lunch time.
The appellants, accused 2 and accused 8 were in
the room standing in
a circle. Accused 7 was not there. She could see inside the room as
she was about 30 paces away. Later it
transpired that she saw the
people inside the room when she walked past the sliding doors of that
room and that her position at
the swimming pool was such that she
could not look into the room. This placed a question mark over her
reliability as to the identity
of the people she could observe in the
room standing in the circle. This identification was further rendered
questionable when
it was put to her that accused 2 could not have
been at River Lodge at that time as he was in hospital and the
relevant hospital
records were produced. The reliability of her
evidence was further compromised when it was pointed out to her
that her statements
to the police contained different times when she
made her observations at River Lodge. Later accused 1 who was with
her was called
into the room. He went in. She could not hear nor did
she know what the people inside the room were discussing. She left
River
Lodge with accused 1 and Motseng at about 3pm. She later asked
accused 1 what was discussed inside the room. He told her that in
the
meeting he was promised money to kill comrade Cheka by the fourth
appellant and that the third appellant would have provided
him with a
firearm to use. She then told accused 1 that he should not get
involved as they were already in trouble. She then testified
that on
14 December accused 1 phoned her and told her that she must watch
television as they have killed Cheka.
[23]
During cross examination it transpired that she had made five
statements to the police. In her first statement she stated that
she
went to River Lodge at 15h00. In court she said that she went at
13h00 and left at 15h00. In a later statement she said that
she went
to River Lodge twice during the same day, the second time was at
15h00. There were further discrepancies. One of her statements
was
also incorrect when it referred to the accused persons sitting
together in the room at River Lodge. In her evidence in court
she
said they were standing although she could not say how many people
were in the room and what their positions were. In one of
her
statements she omitted to mention accused 8. She attributed these
inconsistencies to the police who wrote the statements. In
the court
a
quo's
judgment the court went so far as to find that the
police interfered with the statement of witnesses
"to create
false impression that witnesses contradict themselves".
This
finding is based on conjecture and is not supported by any reliable
evidence. At the end of the day it was the witness that
contradicted
herself on material aspects which rendered her reliability and
credibility questionable.
[24]
In an attempt seemingly to support the evidence of Ms Tlako
the court a
quo
eriquired from the legal representatives
whether accused 1,2 and the second appellant denied that this witness
was at River Lodge
on 13 December 2012 around lunch time. They did
not deny it as their versions were that they were not there at all.
This admission
the court elevated to some form of corroboration in
support of the evidence of Ms Tlako. It never was the defence's case
that Ms
Tlako was not at River Lodge on th13th. It was their case
that they were not there and the acceptance that Ms Tlako was at
River
Lodge does not make her evidence more reliable or credible.
[25]
Ms T!ako was a single witness. whose testimony was not
corroborated in any material way by any other admissible evidence.
What accused
1 told her afterwards what was discussed at River Lodge
will amount to hearsay evidence concerning the appellants and
although
the court a
quo
placed some reliance on what was
said, this evidence remains inadmissible as against the appellants.
Similarly, what accused No.
1 later told her on the 14th of December
2012 over the telephone is inadmissible evidence against the
appellants and need not be
further considered in this judgment.
[26]
In terms of
section 208
of the
Criminal Procedure Act a
court can
base its findings on the evidence of a single witness. It has been
found in many cases of the Supreme Court of Appeal
that section 208
of the Act did not do away with the cautionary rule requiring that
the evidence of a single witness had to
be substantially
satisfactory in every material respect or at least there should be
some corroboration for the testimony of the
single witness. See: S v
Mahlangu and Another
2011 (2) SACR 164
SCA at para 21; Jansen v S
(236/2015) [2016] ZASCA (26 August 2016).
[27]
The evidence of Ms Tlako was not satisfactory in all material
respects. There were serious contradictions which go to the heart
of
the case. In my view, these contradictions have rendered her evidence
untrustworthy, less credible and unreliable. It cannot
be found that
her evidence is satisfactory in all material respects. Even the trial
judge must have had his concerns as to the
reliability of Ms Tlako's
evidence as he granted the discharge applications of accused 2 and 8
after the case for the state was
closed despite the evidence of Ms
Tlako to the effect that they were part of the meeting at River
Lodge.
[28]
It should be added that even if the admissible portions of the
evidence of Ms Tlako was accepted i.e. that on the 11th of December
2012 the second appellant said that the deceased must be killed, that
on 12th December 2012 the second appellant told accused 1
in the
presence of the other appellants that they must meet with accused 8
to finalize the plan to kill the deceased and that they
in fact met
on the 13th of December 2012, the only reasonable inference would not
be that at River Lodge they came to an agreement
to commit the
murder. Without admissible evidence as to what was said at this
meeting it will remain pure conjecture whether an
agreement to kill
the deceased was finalized and therefore concluded. There can be a
conspiracy to act unlawfully only if there
is a definite agreement
between at least two persons to commit a crime. See: S v Cooper
1976
(2) SA 875
(T) at 879. It has been found in paragraph [13] above that
the court a
quo
could not have placed any reliance on the
extra-curial statement of accused 1 to conclude that an agreement was
reached to kill
deceased.
[29]
The state relied on a common intention between the accused to
kill deceased to convict them on the murder count. What the court has
done was first to find that a conspiracy to kill the deceased was
proven, then the court relied on the statement of accused 7,
which is
inadmissible against the appellants, to conclude that the appellants
formed a common purpose to kill and in fact caused
the killing the
deceased. Without a finding that the state has proven the conspiracy,
and without further evidence, a finding of
a common purpose cannot be
sustained. The court a
quo
relied on the extra-curial
statements of accused 1 and 7 in support of its inference that the
appellants and accused 1 obtained
the services of accused 7 to commit
the murder. Apart from accused 7’s statement there was no
evidence whatsoever which indicated
that the appellants and accused 1
agreed with accused 7 that he should perform the act of killing the
deceased.
[30]
The court
a quo,
in its judgment drew the inference
that the appellants gave accused 7 money to kill the deceased. This
inference could not have
been drawn to convict the appellants. It was
not the only reasonable inference that could be drawn from the proven
facts. For instance,
just to refer to one other reasonable inference,
accused 7, who used his own firearm to shoot the deceased, could have
acted on
his own volition.
[31]
Accordingly, and irrespective of the shortcomings in the accounts of
the appellants, we are of the view that the state's case
fell short
of proving the guilt of the appellants beyond reasonable doubt.
[32]
The following order is
made: The appeals of the four appellants are upheld and the
convictions and sentences are set aside.
Strydom
AJ_________
Moshidi___________
Meyer
J_____________