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[2017] ZAGPPHC 131
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Malatjie and Another v S (A191/2016, CC360/2010) [2017] ZAGPPHC 131 (5 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Date
of hearing: 3 March
2017
Case
number: A191/2016
Case
number court a quo: CC360/2010
In
the matter between:
RON
NIE N DIBA
MALATJIE
First Appellant
NCHOKE
RALPH
MALATJIE
Second Appellant
and
THE
STATE
Respondent
JUD
G
MENT
IN APPEAL
BRENN
ER.
Al:
1.
This is a full bench appeal against the conviction of the appellants,
Ronnie Malatjie (accused 1 in the trial court), and
Ralph Malatjie,
(accused 2 in the trial court), on 13 February 2012, handed
down by the Honourable Mr Justice Legodi, J,
in the North Gauteng
High Court, held at Phalaborwa.
2.
The appellants, identical twin brothers, (and this was undisputed),
were convicted on two counts of robbery with aggravating
circumstances, one of murder, one count of illegal
possession of an unlicensed firearm and one count for the
illegal possession of ammunition.
3.
They were sentenced on the same day to fifteen years on each robbery
count, life imprisonment on the murder count, three
years on
possession of the firearm and one year on possession of ammunition.
Counts one, three, four and five were to run concurrently
with count
two, being the life sentence. The effective sentence was therefore a
term of life imprisonment.
4.
Albeit that they applied for leave against conviction and sentence,
they were granted leave to appeal against conviction
only, this on 2
March 2015.
5.
The issues on appeal pertain primarily to identification evidence.
The enquiry is whether the respondent discharged its
onus of proving
beyond a reasonable doubt that the appellants were indeed the
perpetrators of the crimes in question, all of which
occurred on the
evening of 19 October 2007, at about 20h00, near Nomathatha Cafe in
Namakgale ("the Cafe").
6.
The appellants contend that there was no proper identification,
considering the inadequacies in the evidence of state witnesses,
viewed against the alibis produced by the appellants, and the fact
that none of the stolen goods was found in their possession.
7.
Ronnie was arrested on 26 January 2008, and Ralph was arrested on 13
October 2008.They both had prior convictions,
but none relating to
robbery or murder. This is of no moment to the issues on appeal.
8.
The appellants pleaded not guilty to all counts. Appellant 1, Ronnie
Malatjie, declined to provide a plea explanation.
Appellant 2, Ralph
Malatjie, gave an alibi that he was not at the scene, and was in
Gabasa Village at the time of the incident.
Both appellants were
legally represented at trial.
9.
The evidence, succinctly summarised, was as follows. On the evening
in question, several employees of the Cafe were closing the
Cafe, and
some of them were already in the back of the bakkie parked outside
the premises, waiting to be transported home. These
employees were:
Esther Malatjie ("Esther Malatjie"), Clement Morema
("Morema"), Phillip Hlabane("Hlabane"),
Thami
Dube ("Dube"), Maruping Malatji ("Maruping Malatji"),
Umatapa Maake ("Maake"), and Semotso
Moloto ("Moloto").
10.
About five assailants approached the bakkie, one armed with a
firearm. The assailants stole numerous items from the bakkie.
This
was the lawful property of Esther Malatjie, and/or six other persons
present. The property included a cellphone
belonging to
Esther Malatjie, (which she had left in the bakkie when she fled the
scene), cellphone airtime vouchers valued at
R3 385,00, cigarettes
worth about R2 660,00 and cash of about R716,00. They ran away with
the stolen goods.
11.
The bakkie was parked in a dark area some distance from the Cafe,
preventing the employees from identifying the assailants.
The
employees fled the scene, save for Morema, who followed the
assailants as they ran away with a box containing cigarettes and
bucket containing money and airtime vouchers taken from the bakkie.
While running after them he heard gunshots. He saw them holding
a man
standing near a vehicle and shooting him. At this juncture he decided
not to follow them and ran back to the Cafe. He could
not identify
the assailants.
12.
In close proximity to the Cafe, near a gravel road which intersects
by way of a T-junction with a tarred road where the
Cafe is
situated, a certain Rahuma Walter Mojela ("the deceased")
was standing next to his Toyota motor vehicle. After
the robbery at
the Cafe, the assailants, at least one of whom was armed, approached
the deceased, shot him and alighted his vehicle.
The deceased was
pronounced dead on arrival at hospital.
13.
It was undisputed that the offences were committed. The postmortem
report of the deceased and photographs of his body were admitted
under
section 220
of the
Criminal Procedure Act 51 of 1977
. The cause
of death was a gunshot wound to the neck, with the bullet moving into
the left chest cavity and lodging in the spine.
14.
The trial commenced on 27 October 2010, some three years after the
event. Three assailants had been arrested, including the
two
appellants. The third assailant, accused 3, Sello Vincent Maboko,
("Maboko" or "Sello"), had since died.
He had
escaped from custody while on trial in this case, and was shot dead
when the police tried to re-arrest him. The remaining
assailants were
still at large.
15.
At the hearing, it was contested by Counsel for the appellants that
the paintings out made by Ronnie Malatjie to Captain Selepe
on 27
January 2008 were admissible, and that the alleged confession made by
Ronnie Malatjie on 15 October 2008 to Captain Sekgobela
was
admissible. On 13 January 2012, the trial Court ruled against the
admissibility into evidence of the paintings out and confession.
This
ruling is therefore of no moment to the appeal.
16.
An inspection in loco took place, from 11h00 to 13h00, in January
2012, with the assistance of state witness Venecia Malahle
("Malahle"), at which the following was revealed:
a.
the Cafe is next to a tarred road,
which intersects with a
gravel road by means
of a T-junction;
b.
While walking from Jam Alley tavern with Rebonai Shai ("Shai")
and Tshepiso Mametja ("Mametja"),
along the tarred road, in
the vicinity of the Cafe, Malahle saw the assailants for the first
time at the Cafe at a distance of
about 91 metres; this was near
where the deceased's vehicle was parked at the time;
c.
There was an Apollo light about 163 metres south of the Cafe and
another Apollo light about 163 metres north
of the Cafe, both at
heights of about 36 metres;
d.
The distance between the deceased and his vehicle and where Malahle
and the other witnesses hid away at the
home of a third party was
about 17 metres;
e.
Near the T-junction, where the vehicle was parked, there is another
Apollo light, about 18 metres in height,
which was about 179 metres
away from the T-junction; according to Malahle, this was the
brightest light in the area;
f.
All Apollo lights had six globes;
g.
There was a fence and trees on the property where Malahle and her
companions hid away, but Malahle maintained
that they were not high
enough to obstruct her line of vision in observing the shooting of
the deceased at the time of the incident.
17.
It merits mention that the Malatjies never suggested to any of the
state witnesses that any of the lights was not working on
the night
of the incident, nor, relying on their alibis, were they in a
position to do so. In evidence, they conceded the existence
of an
Apollo light near the Cafe, and confirmed that they frequented the
Cafe on occasion.
18.
After spending some time at Jam Alley Tavern on that evening,
Malahle, Shai and Mametja were walking along the tarred road at
about
20h00 approaching the T-junction near the Cafe when they saw about
five men running away from the Cafe, towards them. Malahle
was
walking a short distance away from her companions, in front of them.
Malahle was not drunk at the time. Her evidence that she
does not
drink alcohol was uncontested.
19.
The Cafe was about 81 metres from the T-junction. The deceased was
parked on the gravel road near the T-junction and he was
standing
next to his vehicle. Based on the inspection in loco, when she first
saw the appellants, Malahle was about 91 metres away
from them, and
they were facing her, coming towards her.
20.
She testified that she knew and recognised the appellants, having
lived in the same area as them for about three years.
The
appellants admitted that they knew her.
21.
Shai and Mametja had also known the appellants for several years.
However, each of them saw only one of the appellants and they
were
unable to identify which of the two appellants they saw, the
appellants being identical twins. It merits mention that Shai
and
Mametja witnessed a moving scene at the time, and this may have
caused their confusion. Mametja also identified Maboko (or
Sello),
(the deceased accused 3), at the scene.
22..
Malahle heard gunshots, and she heard Ronnie and Ralph Malatjie
calling to their co-assailants, by the names "Sello"
and
"Rodney", whom Malahle did not know. All of the men
alighted the car with the goods they had been carrying and they
drove
off
.
23.
Malahle, Shai and Mametja were hidden away on a nearby property about
17 metres away from the deceased's car when they witnessed
the
shooting. Malahle said she saw Ronnie and Ralph approach the car.
From Malahle's viewpoint, visibility was good owing to the
bright
Apollo light and lights on the property, and her view was
unobstructed.
24.
After phoning her boyfriend after the assailants had left the scene,
he came to fetch her. Her companions left on
their own.
She proceeded to Madzite tavern with her boyfriend. Outside the
tavern, she saw the deceased's vehicle but could
not identify its
occupants.
25.
The deceased's vehicle was recovered and inspected by the police on
20 October 2007. Lieutenant Colonel Galeke Raseasala ("Raseasala")
testified that on the day after the incident, while with Constable
Chauke, a cellphone was found in the front passenger seat of
the
vehicle. It was a Siemens ASO. He returned a missed call on the phone
and was told by one Clement who answered that the phone
belonged to
Esther Malatjie. Esther arrived at the police station and identified
the phone as hers. She could recall the exact
phone number of her
phone and this was confirmed by Raseasala, who thereupon handed the
phone to her.
26.
The State's evidence revealed that, on 20 October 2007, one day after
the incident, Ralph Malatjie arrived at the home of his
girlfriend,
Sarah Nkgapele ("Sarah"), who was in the company of her
sister, Doreen Nhlapele ("Doreen"). Doreen
had apparently
been the girlfriend of Ronnie Malatjie. Ralph told Sarah and Doreen
that he had been involved in the robbery and
murder the previous
night.
27.
n the words of Sarah, Ralph Malatji told her and Doreen that:
"they
had killed a certain teacher, a certain foolish teacher. Then we
enquired as to where they did kill him. Then he said
we were from
Nomatata and he had gone there to rob and they were successful. They
found the foolish teacher parked a car outside
waiting there..... We
approached him and pointed a gun at him and instructed him to hand
over his car keys....he refused and then
they killed him."
28.
Ralph told Doreen that he had been given cellphone vouchers by Selle.
Sarah also testified that Ralph had asked her to provide
him with an
alibi for the night of 19 October 2007. The making of these
statements was baldly denied by the Malatjie brothers.
29.
While it is correct that Sarah and Doreen did not report the
statements to the police immediately, this does not vitiate their
credibility and reliability.
The
inference that they may have been fearful to do so, considering the
nature of the information, is reasonable.
30.
We turn to the alibi evidence advanced by Ralph Malatjie. He said he
was at the Pepsi/Thibani tavern for the entire evening.
His
girlfriend Sarah and her sister Doreen said that he left at about
19h00 that night. Sarah saw him walking in the direction
of the Cafe.
Sarah confirmed that he returned to the tavern at about 21h00 that
night. The tavern was about 500 to 600 metres away
from the Cafe. He
was absent for about two hours. The tavern is in close proximity to
the Cafe. Two hours afforded him enough opportunity
to commit
the offences and return to the
tavern. Ralph Malatjie later phoned
Sarah to ask her and
Doreen to provide him with an alibi for the entire period.
31.
Ralph Malatjie testified that one Tebogo was with him that night as
well as some other people, but he failed to call their evidence
to
support this.
32.
Ronnie Malatjie said his wife was ill on the night, and he was
visiting her in Gabasa at the time. Her mother and other people
were
present at the house. Neither his wife (who had since left him and
gone to live with her sister, but who could have been served
with a
subpoena), did not testify. Nor did her mother or any of the other
people present that night testify for Ronnie. There was
no
corroboration for his alibi.
33.
When analysing the evidence, cognisance should be taken of safeguards
which provide consistencies on material facts germane
to the offences
in question.
34.
lt was undisputed that a robbery occurred at the Cafe and was
witnessed by seven employees of the Cafe, albeit that they
could not
identify the assailants. They were aware that there were a number of
them. They confirmed that cellphone vouchers, cigarettes
and money
were stolen from the back of the bakkie in which they were to be
transported.
35.
Morema followed them but when he heard gunshots he stopped his
pursuit and ran back to the Cafe. He saw a group of people holding
the deceased while they shot him. He could not identify who had shot
the deceased. Plainly, the deceased's car was to be used by
the
assailants as their getaway car.
36.
Both appellants were identified by an eye witness (Malahle) who knew
and recognised them from her neighbourhood. She was facing
them when
she saw them leaving the Cafe and when they began to approach her and
Shai and Mametja. Morema, who followed the assailants
as they ran
away with the stolen goods, also heard gunshots. He saw the
assailants holding a man standing near a vehicle and shooting
him. At
this juncture he decided not to follow them. His evidence directly
corroborates the shooting of the deceased just after
the Cafe
robbery, the shooting being by the same assailants who had
perpetrated the robbery and whom he had followed for a short
while
until he saw the shooting.
37.
Importantly, there was further eye-witness identification, albeit of
lesser probative value than that of Malahle's. This was
because
Malahle's companions, Shai and Mametja, recognised one of the twins
but could not confirm which one of the twins they saw.
This was an
excusable mistake considering the fact that they were identical
twins.
38.The
theft of goods from the bakkie at the Cafe was corroborated by
Malahle, Shai and Mametja because they all saw the assailants
running
from the Cafe with goods and bags in their possession.
39.
Mahlale heard gunshots after the appellants had reached the vehicle,
and this alarmed her and she and her companions decided
to hide away
near a toilet at a house at about 17 metres from the deceased's
vehicle. The opportunity for observation was conducive
to accurate
identification. Mahlale first saw the appellants running towards her
on the road, she then saw them approaching the
deceased's car and she
heard gunshots when they arrived near the car. When she hid away, she
could still see them because of the
bright Apollo light in the area,
and the lights on at the property, and her line of vision was
unobstructed.
40.
The location of Esther Malatjie's cellphone in the deceased's vehicle
one day after the incident is an important fact which
links the
perpetrators of the robbery at the Cafe with the perpetrators of the
murder of the deceased.
41.Ralph
Malatjie later voluntarily and without solicitation stated to
Sarah that he had been involved in the robbery
and murder and
this statement was made in the presence of her sister, Doreen. He had
even offered cellphone vouchers to Doreen,
informing her that Sello
had given them to him. Sello's name had been called out when the
Malatjie brothers were at the deceased's
vehicle. Ralph Malatjie had
even asked Sarah to provide him with an alibi for the period during
which the offences were committed.
42.
The alibi evidence of the appellants was cause for circumspection,
deficient in material respects and fell short of being reasonably
possibly true. Ralph Malatjie's alibi was directly controverted by
the evidence of Sarah and Doreen. They testified that they were
with
him at the Pepsi tavern on the evening of 19 October 2007, but they
testified that he left at 19h00. Sarah saw him walking
in the
direction of the Cafe, which was close to the tavern. Sarah testified
that Ralph only returned to the tavern at 21h00, affording
him two
hours within which to commit the offences. The offences were
committed between circa 20h00 and 21h00.
43.
The state witnesses who were employees at the Cafe confirmed that the
robbery occurred at about 20h00 when the Cafe closed.
The murder
occurred very shortly after that, on the versions of Malahle, Shai
and Mametja, and the deceased's stolen vehicle was
seen at another
tavern shortly afterwards by Malahle. Tebogo, who was allegedly
present with Ralph at the tavern during this period
was not called to
testify.
44.
The alibi evidence of Ronnie Malatjie was uncorroborated. His wife,
her mother and other unidentified people who were at his
wife's home
in Gabasa, were not called to give evidence to corroborate his
version.
45.
There were various discrepancies and inconsistencies between the
versions of the state witnesses and ex tempore statements
made by
them. It is axiomatic at law that statements made to the police do
not constitute definitive testimony of all material
evidence, and
that human fallibility in the recollection of events has to be
factored into trial proceedings, a fortiori where
there is a
substantial time lapse between the event and the date when vive voce
evidence is given.
46.
Inconsistencies are frequently proof of the fact that witnesses have
not expediently designed their evidence so as to
dovetail their
versions. The state witnesses were, on the whole, ingenuous in any
errors made by them, but, in the final analysis,
none of the
inconsistencies nor errors was material in nature and did nothing to
disturb the successful discharge by the State
of its onus of proving
guilt beyond a reasonable doubt. See in this regard
S v
Oosthuizen
1
982(3) SA 571
TPP at 576 G-H
.
47.
It was uncontested that the appellants did not possess a licence to
possess a firearm. Joint possession of a firearm was
firmly
established in casu, so the fact that it was unclear which one of the
assailants shot the deceased is irrelevant to the
enquiry.
48.
The group of assailants, including the appellants, jointly possessed
the firearm in common purpose with one another on
the established
facts. See
S
v Mbuli
2003 (1)
SACR 97 (SCA).
49.On
a conspectus of the evidence in its totality, there is no basis upon
which this Court can find that guilt on the counts in
question was
not established beyond a reasonable doubt. There were a plethora of
consistencies in the evidence which resulted in
the case against
Ronnie and Ralph Malatjie being overwhelming.
50.There
was no material misdirection on the facts, and the conclusions
predicated thereon were correctly drawn.
51.The
versions advanced by the appellants in their defence were inherently
improbable and were not reasonably possibly true. The
appeal against
conviction must fail.
52.
The appeal against conviction is dismissed.
______________________________
T
BRENNER
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
14
MARCH 2017
We
agree.
______________________________
P
RABIE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
______________________________
R
TOLMAY
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
It
is so ordered.
Aopearances
For
the Appellant:
Adv L M Manzini
Instructed
by:
Polokwane
Justice Centre (Legal Aid SA)
Counsel
for Respondent: Adv K H van Rensburg
Instructed
by:
The Director
of Public Prosecutions