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[2017] ZASCA 159
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Director of Public Prosecutions, Limpopo v Mokgotho (068/2017) [2017] ZASCA 159 (24 November 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case no: 068/2017
In
the matter between:
DIRECTOR
OF PUBLIC PROSECUTIONS,
LIMPOPO
APPELLANT
and
KAGISO
KODISHI
MOKGOTHO
RESPONDENT
Neutral
citation:
Director of Public
Prosecutions, Limpopo v Mokgotho
(068/2017)
[2017] ZASCA 159
(24 November 2017)
Coram:
Tshiqi, Majiedt, Petse and Mocumie JJA
and Makgoka AJA
Heard:
2 November 2017
Delivered:
24 November 2017
Summary
:
Criminal law
and procedure:
Criminal Procedure Act 51 of 1977
,
s 319:
application
for leave to appeal by State on question of law: acquittal of
accused: trial court finding that State failed to prove
guilt of
accused beyond reasonable doubt: such finding a result of the trial
court applying a wrong test in evaluating evidence:
such error
constituting a question of law.
ORDER
On
appeal from
:
Limpopo
Division of the High Court, Polokwane (M G Phatudi J sitting as court
of first instance).
1 The application for leave to appeal is granted.
2 The appeal is upheld.
3 It is declared that the issue raised by the State encapsulated in
para 27 of this judgment is a question of law and is answered
in
favour of the Director of Public Prosecutions.
4 The respondent’s acquittal on the count of murder is set
aside.
JUDGMENT
Petse
JA (Tshiqi, Majiedt and Mocumie JJA and Makgoka AJA concurring):
[1]
This is an application by the Director of Public Prosecutions,
Limpopo (the State) for leave to appeal referred for oral argument
in
terms of s 17(2)
(d)
of the Superior Courts Act 10 of 2013 (the
Superior Courts Act), and
,
if successful, the determination of the appeal itself. The State
seeks leave to appeal against the refusal by the trial court
(Phatudi
J), to reserve a question of law for decision by this Court, in terms
of s 319 of the Criminal Procedure Act 51 of 1977
(the CPA),
following the acquittal of the respondent, Mr Kagiso Kodishi
Mokgotho, at the conclusion of the trial.
[2]
The respondent was indicted in the Limpopo Division of the High
Court, Polokwane on four counts. On count one he was charged
with
murder, read with the provisions of
s 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
. On counts two and three he was charged
with contravening
ss 3
and
90
respectively, of the
Firearms Control
Act 60 of 2000
. On count four the charge was robbery with aggravating
circumstances as defined in
s 1
of the CPA.
[3]
The respondent pleaded not guilty to all counts. In substantiation of
his plea, the respondent made a statement in terms of
s 115
of the
CPA. The essence of the explanation was as follows: (a) he and two
companions were traveling together in the deceased’s
minibus
taxi from Mokgotho village en route to Penge village; (b) he occupied
the front passenger seat next to the driver whilst
his two companions
occupied the seat behind the driver; (c) one of his companions shot
the deceased once in the head; (d) he tried
to drive the taxi in
order to convey the deceased to hospital for medical assistance but
the engine stalled; (e) he denied that
it was him that shot the
deceased but admitted that the firearm used belonged to him; and (f)
after the shooting they fled the
scene on foot, returning to their
respective homes.
[4]
The facts relating to the commission of the offences are
straightforward and are, for the most part, not in dispute. Much of
the argument in this Court centred around the approach adopted by the
court below in arriving at its conclusion.
[5]
Although the State had called six witnesses to testify in the trial,
it accepted that only two witnesses gave incriminating
evidence
against the respondent, namely Mr Oscar Malepe and Mr Thabang
Morena who were fellow passengers with the respondent
in the
deceased’s taxi. It bears emphasising that the respondent
denied any complicity in the commission of the offences
with which he
was charged in the court below.
[6]
The gist of the evidence of Morena and Malepe was as follows. Morena
testified that he boarded the deceased’s taxi together
with
Malepe and the respondent at Ga-Mokgotho village en route to Penge
village. They were all returning from a football tournament
and were
on their way home. When they boarded the taxi, the deceased was alone
inside. Malepe occupied the front seat alongside
the deceased. He and
the respondent sat on the same seat, behind the deceased. According
to Morena, the respondent was seated on
his right. It is common cause
that the sliding door through which back passengers alight from the
taxi was on its left side. When
the taxi stopped at Penge village, he
stood up from his seat, intending to pay the deceased the taxi fare
and then disembark as
he had to alight first. At that stage, he heard
the sound of gunfire coming from behind him. He then saw the deceased
slumped over
the steering wheel, thereby triggering the horn of the
taxi. After hearing the sound of a gunshot, he alighted and did not
look
back. He and Malepe fled the scene. Later, the respondent
followed suit and soon caught up with them. The respondent was not
carrying
anything in his hands. Morena testified that the respondent
mentioned that he (Morena) was lucky that he (the respondent) had
only
one bullet in the gun, which Morena understood to be a threat
directed at him. The respondent warned them never to mention the
incident to anyone.
[7]
In his turn, Malepe testified that he, Morena and the respondent
boarded the deceased’s taxi at Ga-Mokgotho village, travelling
to Penge village. He sat in the front passenger seat alongside the
deceased. Morena and the respondent sat behind the deceased.
When the
vehicle stopped at Penge village, he heard the sound of gunfire. He
looked back and saw the respondent holding a firearm
pointed
downwards. The respondent disembarked from the taxi, walked around to
the driver’s side and then, pushing the deceased
towards the
left side of the front passenger seat, attempted to drive the taxi
without success. He and Morena fled the scene. They
were later
rejoined by the respondent who warned them not to mention the
incident to anyone. Malepe further testified that a few
years later
the respondent repeated the warning over the telephone.
[8]
For his part, the respondent closed his case without giving evidence
in his defence or calling any witnesses.
[9]
That the deceased died as a result of a single gunshot wound in the
head in what appears to be an abortive robbery on 24 December
2010
was not in dispute. The substantial issues in the case were, first,
whether the State had proved
beyond
reasonable doubt that the respondent was responsible for the murder.
Second, whether the approach adopted by the court below
in evaluating
the evidence at the trial constitutes an error of law as contemplated
in
s 319
of the CPA. It bears mentioning that neither Malepe nor
Morena could say with any measure of conviction that it was indeed
the
respondent who had fired the shot that fatally wounded the
deceased. Thus, in large measure the State’s case rested on
circumstantial
evidence with respect to the events of the fateful
night.
[10]
Section 319
of the CPA provides:
‘
(1) If
any question of law arises on the trial in [the High Court] of any
person for any offence, that court may of its own motion
or at the
request of either of the prosecutor or the accused reserve that
question for the consideration of the [Supreme Court
of Appeal], and
thereupon the first-mentioned court shall state the question reserved
and shall direct that it be specially entered
in the record and that
a copy thereof be transmitted to the registrar of the [Supreme Court
of Appeal].
(2) The
grounds upon which any objection to an indictment is taken shall, for
the purposes of this section, be deemed to be questions
of law.’
[11]
As already stated, the respondent did not testify in his defence at
the trial. In the course of evaluating the evidence adduced
at the
trial, the court below was cognisant of the general principle that:
(a) the onus in a criminal trial rests on the State;
(b) an accused
person bears no onus to satisfy the court that his version – if
the accused elects to testify – is true
and that it suffices
that the version of an accused is reasonably possibly true; (c) while
it is permissible to have regard to
the probabilities, the version of
an accused cannot be rejected simply on the basis that it is
improbable and that it can be rejected
on the basis of probabilities
only if the court is satisfied that it is not only improbable but
also false beyond reasonable doubt.
(See in this regard
S
v Shackell
2001 (2) SACR 185
(SCA) para
30.)
[12]
The court below rejected the evidence of the two material State
witnesses describing their evidence as ‘not satisfactory
in all
material respects’. In addition, it found that the witnesses in
question had ‘rehearsed’ their evidence
and also
‘schooled each other’ as to what ‘to say in [their]
evidence, in an effort to implicate the [respondent]’.
For this
reason, it noted that their evidence was untrustworthy. It went on to
state that the ‘accused’s version’,
even though not
tested, is ‘. . . reasonably possibly true and . . . not
inherently improbable’.
[13]
I have put the words ‘accused’s version’ quoted
above in parenthesis in order to illustrate that when the
learned
judge in the court below made reference to an ‘accused’s
version’ he was seemingly labouring under a
misconception that
the respondent had testified when in truth he had not.
[14]
It is necessary at this juncture to record that the reasoning
underpinning the judgment of the court below is not a model of
clarity. It reveals a fundamental misconception as to the proper test
that finds application when a trial court evaluates the evidence
at
the end of the trial in instances where an accused has not testified
in his defence or called any witnesses. I shall revert
to this aspect
in due course.
[15]
At the conclusion of the trial, the court below held that the State
failed to prove its case beyond a reasonable doubt, noting
amongst
other things, that the case had been poorly investigated by the
police. It bears mentioning that the State conceded, when
it
addressed the court below on the merits, that it had not proved its
case with respect to three of the four charges preferred
against the
respondent. Accordingly, the State accepted that the respondent was
entitled to an acquittal in relation to those counts.
In the event,
the respondent was acquitted on all counts.
[16]
Dissatisfied with the outcome of the trial in relation to the murder
count, the State unsuccessfully applied to the court below
for a
reservation of a question of law in terms of
s 319
of the CPA for
decision by this Court, asserting that the respondent’s
acquittal was occasioned by an error of law committed
by the trial
judge. The State subsequently applied to this Court for leave to
appeal against the dismissal of its application.
As already
indicated, that application for leave to appeal by the State was
referred for oral argument in terms of
s 17(2)
(d)
of the
Superior Courts Act. Although
the State had conceded in the
court below that it had not proved its case in relation to, amongst
others, the count of robbery
– hence this count was not the
subject of its application for reservation of a question of law in
the court below –
it nonetheless sought to widen the ambit of
its application in this Court by contending that the respondent
should not have been
acquitted even on the count of robbery. I shall,
however, return to this aspect later.
[17]
Apropos the State’s application for a reservation of a question
of law in terms of
s 319
of the CPA and pertinently addressing
the State’s contention that what was put to the State witnesses
on behalf of the respondent
under cross-examination was not evidence,
the court below, amongst other things, said the following in its
judgment dismissing
the application:
‘
[T]he
answers provided for by witnesses as opposed to the version put by
the defence constitute, . . . [was] evidence before the
court . . .’
For
this proposition the court below sought to rely on
S
v Van der Meyden
1999 (1) SACR 447
(W)
at 449a-f. In the event, the court below concluded that the question
that the State sought to have reserved in terms of
s 319
of the CPA
was one of fact and not one of law. Consequently, the application
failed. On this score, it suffices merely to state
that
Van
der Meyden
is not authority for the
proposition for which it was cited by the court below.
[18] It
is apposite at this stage to make some general observations with
regard to the correct approach to the evaluation of evidence
in a
criminal trial. It is trite that an accused can only be convicted if
the evidence establishes his guilt beyond reasonable
doubt. And as
Nugent J observed in
Van der Meyden
(at 450a-b):
‘
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. 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.’
[19]
In
Director of Public Prosecutions,
Transvaal v Mtshweni
2007 (2) SACR 217
(SCA) this Court, with reference to
Magmoed
v Janse van Rensburg & others
[1992] ZASCA 208
;
1993
(1) SACR 67
(A), emphasised that ‘there can be no appeal by the
State against an acquittal where the Court has erred in evaluating
the
facts and drawing inferences, even if the error is grave’.
In
Magmoed
,
Corbett CJ held (at 101h-i) that it is not competent for the State to
raise as a question of law, in terms of
s 319
of the CPA, the issue
whether a reasonable court could not have acquitted the accused.
[20] In
the context of considering the effect of a failure of an accused to
testify in the face of incriminating evidence, Smalberger
JA had
occasion to say the following in
S v Francis
1991 (1) SACR 198
(A) at 203h-i:
‘
It was
therefore incumbent upon the trial Court to properly evaluate the
evidence of . . . in the light of its alleged deficiencies,
and the
criticisms voiced against it, in order to determine whether it
measured up to the standard required for its acceptability.
If it did
not measure up to such standard, it would not avail the State in the
discharge of the onus of proof upon it that accused
. . . failed to
testify. While an accused person’s failure to testify may in
appropriate circumstances be a factor in deciding
whether his guilt
has been proved beyond all reasonable doubt, this is only so
where the State has prima facie discharged
the onus upon it. A
failure to testify will not remedy a deficiency in the State case
such
as the absence of apparently credible implication of the accused
(
S
v Masia
1962 (2) SA 541
(A) at 546E-F).’ (My emphasis.)
[21]
In
S v Boesak
[2000] ZACC 25
;
2001 (1) SACR 1
(CC), a case where the applicant sought leave to
appeal against the judgment of this Court by raising constitutional
challenges
against the dismissal of his appeal, the Constitutional
Court held that it could not avail the applicant to clothe a
challenge
which was not constitutional at all in constitutional garb.
Similarly in this case it can be said, by parity of reasoning, that
it cannot avail the State to rely on
s 319
of the CPA in relation to
a fact that does not constitute a question of law.
[22]
The remarks of Madala J in
Osman & another v Attorney-General,
Transvaal
1998 (2) SA 1224
(CC), although made in a different
context, are instructive. There, the Constitutional Court stated the
following in para 22:
‘
. . .
Once the prosecution has produced evidence sufficient to establish a
prima facie case, an accused who fails to produce evidence
to rebut
that case is at risk.
The
failure to testify does not relieve the prosecution of its duty to
prove guilt beyond reasonable doubt
.’
(My emphasis.)
If
the finding of the court below relates to the weight of the evidence
and the inferences that can properly be drawn therefrom,
it is not
open to the State to clothe that finding as a question of law and
then rely on it for the purposes of
s 319
of the CPA.
[23]
In
Magmoed v Janse van Rensburg &
others
1990 (2) SACR 476
(C) at 478g,
it was held that the decision to reserve a question of law should not
be an academic one but should have a practical
effect on the
conviction of the accused.
[24]
I return to the facts of the present case. The application for leave
to appeal against the refusal by the court below to reserve
a
question of law was confined to two grounds. These were broadly that:
(a) the court below did not determine whether or not the
evidence
adduced by the State was sufficient, and, if not, that it
consequently did not constitute a prima facie case against the
respondent on which a court acting carefully might convict; and (b)
the test applied by the court below, ie whether or not the
version of
the [respondent] is reasonably possibly true, was inappropriate given
that the respondent did not testify. Thus, it
was submitted that
these material misdirections committed by the court below constitute
errors of law as contemplated in
s 319
of the CPA.
[25]
In support of these contentions, counsel for the State relied on
several decisions of this Court and the Constitutional Court.
(See,
for example, in this regard:
Director of
Public Prosecutions, Gauteng v Pistorius
[2015]
ZASCA 204
;
2016 (1) SA 317
(SCA);
Director
of Public Prosecutions, Gauteng Division, Pretoria v Moloi
(1101/2015)
[2017] ZASCA 78
(2 June 2017);
S
v Mavinini
2009 (1) SACR 523
(SCA); and
S v Boesak
,
above.
[26]
In
Director of Public Prosecutions,
Gauteng v Pistorius
(paras 21-24) this
Court said that in an appeal brought under
s 319
of the CPA
considerations different to those that are ordinarily appropriate to
appeals, apply. It noted that ordinarily an appeal
is, as a general
rule, ‘a complete rehearing’ of the case albeit confined
to the evidence on record. It went on to
state, with reference to
Magmoed
,
that ‘the traditional policy and practice of our law’ is
that an acquittal by a competent court in a criminal case
is final
and conclusive and may not be questioned in any subsequent
proceedings. Accordingly, an appellate court is precluded from
interfering with the factual findings of a trial court leading to the
rejection of the version of the State.
[27]
The question of law which the State sought to have reserved was
formulated in the following terms:
‘
In
instances where the accused did not testify, the correct test to be
applied during the evaluation of the evidence is whether
or not the
evidence of the State constituted a prima facie [case] on which the
Court might convict the accused.
The test is
not whether the version of the accused is reasonably possibly true or
not. . . . [that] test applies only in circumstances
where the
accused [has] testified.’
The
thrust of the State’s case therefore is that the court below
erred in its approach to the evaluation of the evidence by
essentially adopting a wrong test, hence its erroneous conclusion.
[28]
In elaboration, the State strongly relied on several passages in the
judgment of the court below. Counsel for the State contended
that the
judgment is replete with dicta which ineluctably indicate that the
court below adopted an incorrect approach in its evaluation
of the
evidence. True, a reading of the judgment of the court below reveals
a number of fundamental misdirections.
[29]
Whilst the respondent did not testify, the court below, inexplicably,
said the following:
‘
It is
an entrenched principle of our law that the State carries the burden
to prove in all criminal proceedings the accused’s
guilt beyond
reasonable doubt.
That is the
standard set by the law. Consistent with this principle is the
principle that no onus is cast on an accused person to
convince the
court or that his evidence be true or believed.
All what
accused need to do when faced with a case to answer, if any of
course, is to place a version that is reasonably, possibly
true. It
need not even be truthful either. It is the court’s judicial
function to investigate and evaluate the totality of
the evidence and
determine whether there is a reasonable possibility that the accused
is not guilty.The accused should be convicted
only if the court finds
not only that his version is improbable, but also beyond reasonable
doubt false. The accused need not necessarily
be believed to acquit
him.
These
underlining principles were captured in the case of State v V
2000
(1) SACR 453
(SCA). . . .’
[30]
The court below continued:
‘
The
court is therefore given three diametrically opposed versions.
Oscar
[Malepe] implicates the accused. He, the accused, also threw a
counter accusation. Alleging that it was Oscar who killed the
deceased. Clearly, . . . only the three of them know the truth of who
actually fired the fatal shot. The three of them know the
truth.
Now, following the approach
adopted in S v V, I have referred to, it admits of no doubt that
there is no obligation upon an accused
person where the state bears
the onus, to convince the court. If of course 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 beyond reasonable doubt
false. It is
permissible for the court to view the probabilities of the case, to
assess whether the accused’s version is
reasonably, possibly,
true.
But whether
one believes him is certainly not the test. It would therefore be a
misdirection for the trial court to regard an accused’s
failure
to convince the court as a sign of veracity of the state’s
case. That would be a serious misdirection on the part
of the court.’
[31]
The court below then concluded:
‘
The
accused’s version, even though not tested, is in my view,
reasonably, possibly, true and it is not found to be inherently
improbable. I find that there is no reasonable possibility that the
accused is guilty.
The court in
evaluating the evidence is of the view that there is a reasonable
possibility that he might be innocent and therefore
entitled to his
acquittal. The evidence implicating him cannot be viewed in
isolation, nor evidence exculpating him.’
[32]
Counsel for the State criticised the approach adopted by the court
below in reaching its conclusion. In particular, he submitted
that
its reliance on
S v V
2000 (1) SACR 453
(SCA) was misplaced. There, the appellant had
testified in his defence whereas in this case the respondent did not.
Accordingly,
in
S v V
the
question of the guilt or innocence of the appellant was rightly
determined in the context of the two versions, ie the version
of the
State and the defence version. In this case the question whether the
‘explanation’ of the respondent was false
beyond
reasonable doubt or reasonably possibly true simply did not arise.
Put differently, the test applied by the court below
when it said
that there was a reasonable possibility on the ‘accused’s
version’ (as the learned judge put it)
that the respondent
might be innocent was inappropriate.
[33]
For his part, counsel for the respondent, unsurprisingly, embraced
the judgment and adopted the reasoning of the court below.
He argued
that when regard is had to the tenor of the judgment it becomes plain
that the trial judge was alive to the fact that
the respondent did
not testify. Thus, so the argument went, whatever else is said in the
judgment must be considered against that
backdrop. Furthermore, he
submitted that what the reasoning of the court below, quoted
extensively above, sought to underscore
was that it had regard both
to the respondent’s plea explanation and the evidence of Morena
and Malepe in response to questions
put to them under
cross-examination.
[34]
In my view the contention advanced by counsel for the respondent is
plainly untenable in the context of this case. It entirely
loses
sight of the fact that, in truth, on a holistic and dispassionate
reading of the judgment it becomes self-evident that the
court below
adopted a wrong test as is amply demonstrated by the various excerpts
quoted from its judgment referred to in paras
29 to 31 above.
Consequently, it can hardly be suggested that the approach adopted by
the court below was correct.
[35]
It is of course correct that a trial court, in determining the guilt
or innocence of an accused, may have regard to an accused’s
statement in substantiation of his or her plea of not guilty. And
that a court must consider both the incriminatory and exculpatory
material of the plea explanation. (See in this regard:
S
v Cloete
1994 (1) SACR 420
(SCA) at
428d-g.) But what a trial court is not permitted to do is to equate
the exculpatory material of a plea explanation and
questions put to
State witnesses with an accused’s version when in fact they are
clearly not. (See:
S v Mjoli &
another
1981 (3) SA 1233
(A) at 1238C-E
and 1247H-1248A.) The court below merely glossed over the fundamental
issue raised by the State in its application
for reservation of a
question of law. In so doing, it ignored the most elementary
principle applicable in a criminal trial in determining
the guilt or
innocence of an accused in instances where such an accused has not
testified.
[36]
it is necessary to emphasise in this case that as the respondent did
not testify in his defence at the trial, there was no
‘accused’s
version’ to speak of. Accordingly, the matter fell to be
decided on the basis of the principles endorsed
by this Court in
Francis
referred to in para 20 above. (See also in this regard:
S
v Boesak
, above paras 46-47.)
[37]
In these circumstances, it is beyond question that the court below
committed a serious misdirection which amounts to an error
of law.
The State’s criticism of its judgment was therefore fully
justified.
[38]
For all the foregoing reasons it is my judgement that the conclusion
reached by the court below in acquitting the respondent
cannot stand.
In para 16 above, I mentioned that the State sought to widen the
ambit of its application by arguing that the respondent
should not
have been acquitted also on the count of robbery. I have serious
reservations as to whether it is open to the State
to do so in light
of the fact that it had conceded at the trial that it did not
discharge the onus resting upon it with respect
to this count. Hence,
the State did not impugn the acquittal of the respondent in its
s 319
application in the court below, which is perfectly understandable.
However, in view of the conclusion to which I have come no more
need
be said on this aspect.
[39]
There is one final issue that requires mention. And it is this. The
State, relying on
Pistorius
,
urged us to substitute the decision of the court below acquitting the
respondent with a verdict of guilty on the murder count.
But when we
expressed our misgivings as to the propriety of adopting such a
course, given the circumstances of this case, the State
indicated
that it would be content with an order in terms of which the
acquittal is set aside and no more. (Compare:
S
v Naidoo
1962 (4) SA 348
(A) at
354D-E.) Accordingly, it will be left to the Director of Public
Prosecutions to decide whether it wishes to institute fresh
proceedings against the respondent before another judge.
[40] In
the result the following order is made:
1 The application for leave to appeal is granted.
2 The appeal is upheld.
3 It is declared that the issue raised by the State encapsulated in
para 27 of this judgment is a question of law and is answered
in
favour of the Director of Public Prosecutions.
4 The respondent’s acquittal on the count of
murder is set aside.
_________________
X M Petse
Judge of Appeal
APPEARANCES
For
Appellant: M Sebelebele
Instructed
by:
The Director of Public Prosecutions,
Limpopo
The
Director of Public Prosecutions, Bloemfontein
For
Respondent: L M Manzini
Instructed
by:
Legal Aid South Africa, Limpopo
Legal
Aid South Africa, Bloemfontein