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[2017] ZAGPPHC 112
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Selota v S (A700/2016) [2017] ZAGPPHC 112 (28 February 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
28/2/17
CASE
NO:
A700/2016
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
ABEL
KOTIKOTI
SELOTA
APPELLANT
AND
THE
STATE
RESPONDENT
JUDGMENT
THOBANE
AJ,
[1]
The appellant who enjoyed legal representation throughout the entire
trial, was arraigned in the High Court, North Gauteng,
sitting as the
Circuit Local Division for the Eastern Circuit District in
Middelburg, before Madam Justice Pretorius on the following
counts;
Count
1, murder;
Count
2, attempted murder and
Count
3, attempted murder.
[2]
He pleaded not guilty to all the counts and offered a written
explanation in terms of
section 115(2)
of the
Criminal Procedure Act,
51 of 1977
. The nub of his explanation as it pertains to count 1, is
that he acted in self defence. With regard to the remainder of the
counts,
he explained that it was a sudden emergency in that when he
fired the shots at the motor vehicle, he was not aware that there
were
passengers in the motor vehicle. The appellant further made
admissions in terms of
section 220
of the
Criminal Procedure Act,
pertaining
to the identity of the deceased, the transportation of his
body, the post mortem report and the findings contained therein, the
photo album as well as the J88 Medico Legal Report.
[3]
Notwithstanding his plea, the appellant was found guilty as charged
and sentenced as follows;
Count
1, 12 years imprisonment,
Count
2, 5 years imprisonment,
Count
3, 5 years imprisonment.
It
was further ordered that the sentences imposed in respect of counts 2
and 3 run concurrently with the sentence imposed in respect
of count
1. The effective term of imprisonment was therefore 12 years.
[4]
This appeal which is directed at the conviction only, is with leave
of the trial court.
[5]
At the commencement of the appeal it was pointed out that the record
was partially incomplete in that a portion of the evidence
of Ms P.
S., a state witness, was not transcribed. It was however agreed that
the record was sufficient for purposes of the appeal,
and that in the
interest of justice the appeal be proceeded with.
[6]
The appellant contends that this court must intervene and set aside
the conviction in that;
(a)
He did not intentionally shoot at the deceased as he
acted in self
defence and or out of necessity;
(b)
He did not have the intention to kill and/or did not
attempt to kill
his ex-wife and his daughter.
STATE
CASE
[7]
L. S. M., the first state witness, testified that she had been in a
relationship with the appellant as he had paid lobola for
her. The
relationships, which had been abusive, lasted between 1989 and 2003
when she eventually left owing to the abuse. On the
3 February 2008
she was accompanied by her daughter P. and the deceased to visit his
son who had been admitted to hospital. The
appellant had also been
visiting at the hospital. Upon exiting the ward, she met the
appellant who without saying anything wanted
to grab her. She hid
behind some people and was advised by a police woman to run away. She
eventually managed to run away to the
car which had been parked at
the gate of the hospital. The appellant, so she testified, had been
insulting her calling her a woman
of loose morals. They thereafter
left the hospital and drove in the direction of a marula tree where
the deceased intended to buy
food. While driving slowly towards the
tree she heard three gun shots coming from the front of the motor
vehicle. She did not see
the shooter. She opened the door and fell to
the ground. She then ran to the hospital where she was taken to the
toilets and later
to the ward where she was later admitted.
[8]
P. S. testified that she went to the hospital to visit his brother in
the company of her mother as well as the deceased. Her
father,
appellant, who had also been visiting, was the first to exit the
ward. When they exited they met him outside and he asked
to speak to
her mother who blatantly refused. He thereafter tried to grab her
hand tightly but she managed to break free. She thereafter
did not
hear the appellant speak to the deceased or her mother. They walked
back to where the car was parked. The deceased left
them momentarily
and returned to the hospital. During that time the appellant was in
the company of two other persons. When the
deceased returned from the
hospital he entered the motor vehicle and drove, at normal speed, in
the direction of the marula tree.
The next thing she saw her father
in front of the vehicle, 5 meters ahead with an out stretched hand,
firearm in hand and firing
in the direction of their motor vehicle.
She tried to duck and hide but could feel that she had been shot. She
observed the appellant
pull out the deceased from the driver's seat.
She got off the vehicle on the passenger side and soon thereafter
lost consciousness.
[9]
The third witness to be called was Sinah Madigage, a fruit and
vegetable vendor under the marula tree across the hospital. On
the
day of the incident the appellant approached one of the vendors in
the company of two other persons and bought some item and
started
eating it. He observed a motor vehicle, a bakkie, approaching the
marula tree. As it drove around the tree she heard sound
of a firearm
being discharged. She saw the appellant move closer to the vehicle
and open the drivers door and pull down the driver.
She then heard
another shot being fired. She saw three people in the bakkie. She was
at a distance of about six meters from the
bakkie when the shooting
took place. She confirmed that she made a statement to the police but
that she initially refused
to make it as she was afraid
of the accused. Eventually she relented and signed the statement. She
confirmed that when
consulting with the prosecutor, at the
commencement of the trial she pointed out to her that she did not
agree with a porting f
the statement, namely, that the vehicle had
been driving at high speed. According to her it was driving at normal
speed. She heard
three shots being fired and she saw the appellant on
his phone calling the police. She was quizzed about the two
statements she
made to the police and the contradictions contained
therein and she explained that she had initially been reluctant to
make a statement
but was prevailed upon by the police. Even then, the
contents are not as she recalls the events of the day.
DEFENCE
CASE
[10]
Appellant testified in his own defence that on the day of the
incident he had been at the hospital to visit his son. That at
some
point he saw his ex wife approach and he asked her for a copy of a
birth certificate so that he could apply for an ID for
a child. His
ex wife did not answer him instead it is the deceased who asked him
why he wanted to talk to his wife. He walked away
but came back and
stabbed the appellant on his chest with his finger and said "/
will
strike
you
here
and
you
will
die
there
at
the
gate",
turned and walk away. He drove off in the car but came back after
5 seconds. He was then told by a security guard with whom he had
been
standing, that he should run away as the deceased would kill him
because he had a gun. He then ran away in the direction of
where the
taxis were. The deceased moved towards the security guard with whom
the appellant had been standing and said him
"where is
that
dog".
He was told by the
security guard that he had left. The deceased then proceeded towards
the hospital. The appellant emerged from
where he had been hiding and
proceeded towards the taxis thinking he could catch a taxi and and
leave. He then heard sound of the
deceased vehicle and saw it coming
towards him at high speed. He thought the deceased will shoot him. He
saw it move off the road
and come towards him. He then fired a shot
thinking the motor vehicle would stop. He also saw the deceased move
his hand off the
steering wheel in a downward motion and he thought
he was pulling out a firearm, he fired another shot which was aimed
at the deceased,
but he did not see other passengers.
[11]
After the defence closed its case the parties argued the matter. The
trial Judge felt that there were certain issues that needed
clarification. Dr. Nkondo, who performed the post mortem, was called
as a witness of the court. She testified as to the number
of shots,
injuries to appellant's daughter as well as the location of the
wounds in relation to where the shooter may have been
positioned.
According to her, the shooter was probably positioned at the front of
the deceased when the shots were fired unless
if the deceased turned
his upper body to his right prior to the firing of the shot, in which
event the shooter would probably have
been positioned on the driver's
side.
THE
LAW
[12]
The correct approach to the evaluation of evidence in a criminal
trial was enunciated by the SCA as follows in
S v Chabalala
2003 (1) SACR 134
(SCA)
para 15:
"The
trial
court's
approach
to
the
case
was,
however,
holistic
and in
this it
was
undoubtedly
right:
S
v
Van
Aswegen
2001
(2) SACR 97
(SCA).
The
correct
approach
is
to
weigh
up
all
the
elements
which point
towards
the guilt
of
the accused
against
all
those
which are indicative of his innocence, taking proper
account of inherent strengths and weaknesses, probabilities and
improbabilities on both sides and, having done so, to decide whether
the balance weighs so heavily in favour of the State as to
exclude
any reasonable doubt about the accused's guilt. The
result
may
prove
that
one
scrap
of
evidence
or
one
defect
in
the
case for
either party
(such as
the
failure
to
call
a
material
witness concerning
an
identity
parade)
was
decisive
but
that
can
only
be
an ex post facto determination and a
trial court (and counsel) should avoid the temptation to latch onto
one (apparently) obvious
aspect without assessing it in the context
of the full picture presented in evidence...."
[13]
The aforementioned salutary approach was also adopted in
S
v
Trainor
2003
(1)
SACR
35
(SCA)
para 9. In
S
v
Van der
Meyden
1999 (2)
SA
79
(W),
Nugent J, as he was then, made it clear
that:
"Purely
as a matter of logic, the prosecution
evidence does not
need
to
be
rejected
in
order
to
conclude
that
there
is
a reasonable
possibility
that
the
accused
might
be
innocent.
But what is required
in order
to
reach
that conclusion
is at least
the equivalent
possibility
that
the
incriminating
evidence
might
not be true.
Evidence which
could
incriminate the accused, and evidence
which exculpates
him, cannot both be true
-
the one is possibly true
only
if
there
is
an
equivalent
possibility that
the other is untrue.
There will be cases
where the state
evidence is
so
convincing
and
conclusive
as
to
exclude
a
reasonable possibility
that the
accused might be innocent, no matter that his evidence might suggest
the contrary when viewed in isolation."
[14]
The conclusion which is arrived at by the court as to whether the
evidence establishes the guilt of an accused beyond reasonable
doubt
must account for all of the evidence. The Judge continued:
"The
process
of reasoning
which is appropriate
to the application of
that
test
in
any
particular
case
will
depend
on
the
nature
of the evidence
which the
court has before it.
What must be borne in
mind,
however,
is
that
the
conclusion
which is reached (whether
it
be
to
convict
or
to
acquit)
must
account
for
all
the evidence.
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."
[15]
In S v Olawale
2010 (1) All SA 451
(SCA) at para 13 it was held:-
"It
is
a
trite principle
that
in
criminal
proceedings
the
prosecution must
prove
its
case
beyond
reasonable
doubt
and
that
a
mere preponderance
of probabilities
is not enough. Equality
trite is the observation
that,
in
view
of
this
standard
of proof
in
a
criminal
case,
a court does not have to be convinced
that
every
detail of an
accused's
version
is
true.
If
the
accused's version
is
reasonably possibly
true in substance, the court must
decide the matter
on
the
acceptance
of
that
version.
Of
course
it
is
permissible to
test
the
accused's
version
against
the
inherent probabilities.
But it cannot be
rejected
merely
because it
is
improbable; it
can
only
be
rejected on
the
basis of
inherent probabilities
if
it
can
be
said
to
be
so
improbable
that
it
cannot reasonably possibly be true."
[16]
Finally, a court of appeal will be hesitant to interfere with the
factual findings and evaluation of the evidence by a trial
court,
(see
R
v Dhlumauyo
and
another
1948
(2)
SA
677
(A))
and
will only interfere where the trial court materially misdirects
itself insofar as its factual and credibility findings are concerned.
In
S
v
Francis
1991
(1)
SACR
198
(A)
at
198j - 199g the approach of an appeal court
to findings of fact by a trial court was crisply summarised as
follows
"The
powers of a court to interfere with the findings of fact of a trial
court are limited. In the absence of any misdirection
the trial
court's conclusion, including its acceptance of a witness's
evidence, is presumed to be correct. In order to succeed
on appeal,
the appellant must therefore convince the court of appeal on adequate
grounds that the trial court was wrong in accepting
the witness's
evidence a reasonable doubt will not suffice to justify interference
with its findings. Bearing in mind the advantage
which a trial court
has of seeing, hearing and appraising a witness, it is only in
exceptional cases that the court of appeal will
be entitled to
interfere with a trial court's evaluation of oral testimony".
SUBMISSIONS
[17]
It was submitted on behalf of the appellant that the two witnesses
being the appellant's ex-wife and her daughter, harboured
some
resentment towards the appellant and that they were not independent.
The source of the resentment is identified as the many
years of abuse
that his ex wife endured and the fact that the daughter
sustained a bullet wound at the hand of the appellant
on the day of
the incident. Their evidence, it is contended, ought to have been
treated with caution.
[18]
Contrary to what is submitted, the trial Judge observed that Ms. M.,
gave the impression that she was reluctant to give evidence
against
her father. Nothing on the record suggests that the fact that she was
shot and injured played an extraordinary role in
her testimony. The
record reflects that she testified about what she observed and
experienced. Her relations
to the appellant, in my view, did
not play a role in her testimony.
[19]
It was further argued that there were contradictions in the testimony
of the witnesses and that as a result, it was erroneous
for the trial
court to have found them to be credible witnesses. In dealing with
the contradictions, the trial Judge noted in her
judgment that the
witnesses were not perfect in every respect. She nevertheless found
them to be credible and accepted their evidence.
The credibility
findings by the trial Judge, are a hurdle that the appellant must
clear.
[20]
One must bear in mind that the defence of the appellant which was
advanced when he tendered his plea is that he acted in self
defence.
This defence was however rejected by the trial court as being
improbable and that it was not reasonably possibly true.
In an
attempt to show that he was under attack, the appellant alleged that
the motor vehicle driven by the deceased, came towards
him at high
speed and that he ran away from it. All the three state witnesses
disputed this. According to them the vehicle had
been driven normally
or at normal speed. It is not immediately clear what attack the
appellant was defending himself against, whether
it was the chasing
by the car driven by the deceased or the movement of the deceased's
hand from the steering wheel towards his
hip. From the record the
appellant suggested that it was movement of the deceased's hand from
the steering wheel to the hip that
he interpreted to mean that the
deceased was drawing a firearm. Despite it being pointed out to him
several times that it was impossible
to see a hand moving to the hip
while standing outside a vehicle, he was adamant that it is exactly
what he saw.
[21]
In his plea the appellant indicated that he fired the first shot
towards the car thinking that the deceased would stop chasing
after
him. He further said, "/
then
produced
a
firearm,
firing
shots,
firing
towards
the
car
of the
deceased,
aiming
at
him
as
I
was
in
fear
that
he
will
shoot
me".
During
cross examination he denied that he aimed at anyone. He went further
to deny that he was aware that there were passengers
in the motor
vehicles. The latter denial was strange in light of the fact that the
evidence of the appellant was that he had seen
his ex-wife and his
daughter getting into the deceased's motor vehicle, seconds before he
saw it move towards him and further that
he never saw them alighting
therefrom.
[22]
The appellant was adamant that he had not been standing in
front of the deceased's motor vehicle when he fired the shots
in the
direction of the vehicle. The evidence of the three state witnesses,
contradicted him. He insisted that he was more to the
side of the
vehicle. The evidence of Dr. Nkondo was however decisive. She gave
three pieces of evidence that in my view dispelled
the notion that
the appellant had no intention to kill;
22.1.
She testified firstly that there were three entry wounds on the body
of the deceased and that
there existed two exit wounds. The third
bullet that entered the deceased was found embedded inside him, on
the front of the neck.
The explanation by the appellant that he
had fired only two shots and that the first shot did not even
hit
the vehicle, was clearly not
supported by evidence.
22.2.
She testified that the shooter would probably have been standing in
front of the motor
vehicle in view of the location of the entry and
exit wounds but most importantly the tract. Two of the entry wounds
were described
as
"right upper side of the
chest
15cm from
midline
and
3.5cm
above
and
laterally
from
the nipple".
Another one,
"left upper
chest
wall
2.5
from
the
midline and
5
cm from the collared
bone".
During cross examination, the
version of the appellant to
the effect that he shot the deceased through the driver's window, was
put to her. It was suggested that
one of the wounds could have been
inflicted when the appellant was so positioned. The opinion of Dr.
Nkondo was that on that postulation,
the deceased would have had to
turn his body to face the driver's window for such a wound to be
inflicted. She confirmed that the
wound could only have been
inflicted by a person who was in front of the deceased. There was no
evidence before the trial court
to the effect that the deceased had
turned his body to face the driver's window. The inescapable
conclusion is that the appellant
had been standing in front of the
vehicle when he fired those shots.
22.3.
Dr. Nkondo was asked about the significance of "burned skin"
as noted from the
description of one of the wounds in the post mortem
report. She explained that it is caused by gas and heat when a bullet
is discharged.
Further, that it could be indicative of the range from
which the bullet was discharged. Although she noted the "burned
skin"
she refrained from commenting about the range because the
deceases's shirt had been removed. What is significant though from
her
answers is that to burn the skin around the wound, the shooter
would have been standing at a distance of
not more than a meter.
(my emphasis).This is significant because the version of two of
the state witnesses is that the deceased was pulled off the bakkie
and shot.
[23]
As indicated above, the trial Judge made strong credibility findings
in this matter. She found Ms M. and Ms S. to be credible
and reliable
witnesses. Whereas the court noted contradictions by Ms S., it
nevertheless accepted her evidence in that it was corroborated
by
both her mother and Ms Madigage. The the trial Judge was not
impressed by the appellant. Ostensibly this finding was based on
her
observations of all the witnesses who testified before her which
include the appellant. The trial court found that the appellant;
".......
.
was
a
unconvincing
witness
who
changed
his
evidence
to
suit
the circumstances".
Further,
".........the
court
finds
that
the accused's
version is so improbable
due to the inconsistencies in his own case that it
can not be
reasonably
possibly
true".
Lastly, the court found that
".......the
accused
was
a
dishonest
witness
who
changed
his
evidence
to
suit
the
circumstances
when
he
was cross
examined.
He
failed
to mention
material
evidence
when
consulting
with
his
legal
representative which
resulted
in
crucial
evidence
not
being
canvassed".
In my view appellant has not
demonstrated that the trial Judge was demonstrably wrong on the
credibility and factual findings which
she made.
[24]
Having heard the submissions before us and having gone through the
record of the proceedings I am unable to conclude that the
factual
findings as well as the credibility findings by the trial court are
demonstrably wrong as to justify interference therewith.
In my view,
the record proves that the trial court was correct in its findings.
Given the conspectus of the evidence, I am unable
to find that the
trial court erred in finding that the appellant's version is so
inherently improbable as not to be reasonably
possibly true. It
follows that the appeal must fail.
[25]
I would therefore propose the following order;
25.1.
The appeal is dismissed.
__________________________
SA
THOBANE
ACTING
JUDGE OF THE
HIGH
COURT
I
agree
__________________________
MHE
ISMAIL
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered
__________________________
CP
RABIE
JUDGE
OF THE HIGH COURT