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[2017] ZAGPPHC 292
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Kgomotso and Others v S (A80/2014) [2017] ZAGPPHC 292 (5 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A80/2014
DATE:
5/5/2017
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
In
the matter between:
Molontoa
Kgomotso
1
st
Appellant
Johannah
Khoza 2
nd
Appellant
Mamolefe
Legodi
3
rd
Appelant
and
The
State Respondent
JUDGMENT
NOBANDA
AJ:
INTRODUCTION:
[1]
The Appellants were charged in the Regional Court for the Regional
Division of Gauteng held at Pretoria for murder and kidnapping.
The
Appellants pleaded not guilty to both charges and reserved their plea
explanation. The State called three witnesses who testified
on behalf
of the State. It appears from the record that the State intended to
call two further witnesses and requested a postponement
for that
purpose. The
court
refused on the basis that the case was previously postponed for those
witnesses but the witnesses were still unavailable on
the date the
matter was postponed to. As a result, the State closed its case.
[2]
The Appellants applied for a discharge in terms of Section 174 of the
Criminal Procedure Act 56 of 1977 ("the Act").
The
application was refused on the basis that there was
prima facie
evidence on which the Appellants might be found
guilty at the end of the proceedings.
The Appellants closed their case without giving evidence or calling
any witnesses.
[3]
On 3 September 2012 the Appellants were found guilty on both
charges and sentenced to 8 years direct imprisonment on both
counts.
Both counts were taken together for the purpose of sentence. The
Appellants were further declared unfit to possess firearms
in terms
of Section 103 of Act 60 of 2000. The Magistrate was assisted by 2
assessors during the trial. All the Appellants were
legally
represented during the trial.
[4]
The Appellants applied for leave to appeal against both the
conviction and sentence. On 27 May 2013, Appellants 2 and 3 were
granted leave to appeal against both conviction and sentence. Their
bail was extended and increased from R1000 to R3000 pending
the
appeal. A similar order was granted for Appellant 1 on 11 June 2013.
All the Appellants are out on bail. The appeal is however
proceeding
against Appellants 1 and 3 only as Appellant 2 passed away during May
2016.
[5]
During September 2014, Appellants 2 and 3 raised a
"point in
limine"
in their heads of argument that the record of the
trial proceedings was incomplete in that there was important evidence
missing
relating to one of the State witnesses. It is not clear why
the Appellants referred to the issue as a
''point in limine".
Regardless, nothing turns on this as the missing evidence was
subsequently transcribed and the record supplemented during October
2014. It appears the matter was set down for 25 August
2016 for argument. On 25 August 2016, the matter was postponed
sine
die
for Appellant 3 to file heads of argument on or before 30
September 2016.
[6]
The matter was heard on 14 November 2016.
GROUNDS
OF APPEAL
[7]
There is no notice setting out the grounds of appeal found in
the court file. The grounds of appeal can be deduced from argument
on
the record for application for leave to appeal and from the heads of
argument filed by the Appellants. From the application
for leave to
appeal on behalf of Appellants 2 and 3, Mr Somo, their legal
representative argued as follows:
"Mr Somo:
It
is our believe that
a
different court may come to
a
different conclusion, in regarding (sic) the conviction of the
accused on the counts that they have convicted on (sic) ...the
court did not with respect take into consideration the following
aspects that there was no evidence
before this court in the
count of murder
that such [indistinct]. The accused were
the
real perpetrators.
There is no
evidence before this court that informs the court that they indeed
had
a
hand in the assault that led to
the
death of the accused
.
The only
evidence the court has is. that accused 2 and 3
were the last
people seen
with
the deceased and
eventually when the deceased was found was also found in the presence
of them (sic). although it is very clear
and very evident that there
was
a
mass of people that were involved in the
killing of in the assault that lead to the death of the deceased
(sic)....
It is our submission
Your Worship, that since there is no evidence to the defect (sic) at
(sic)
a
different
court may come to
a
different
conclusion against, that which the court has come up (sic)
to
and the evidence before this court in regard to the kidnapping count
Your Worship. suggest that from the police station as the
accused
left with the deceased it was by agreement they at all times that is
what even like the police cop believe (sic) or to
release the
deceased to go peacefully with them as they had an agreement and the
deceased consented to the moving
.
"
[1]
(emphasis
provided).
[8]
With regard to Appellant 1, Mr Somo argued that there was little or
no evidence that suggested that the Appellant was
the
perpetrator of the murder of the deceased; that the evidence
that is before the court only relates or ends at the
time when
Appellant 1 was seen with the deceased leaving the
police station; that nothing
suggests that Appellant 1 was even party to the killers
or the people who assaulted the deceased that led to the deceased's
death; further that there was nothing before the court that suggested
that Appellant 1 was even present when the deceased was found
by the
paramedics. Mr Somo submitted that the court misdirected itself in
concluding that there was sufficient evidence leading
to the
conclusion that the fact that Appellant 1 was the person
'last
seen'
with the deceased and therefore that he was the person who
had committed the act that led to the deceased's death.
[9]
With regard
to the kidnapping charge, Mr Somo argued that the deceased consented
to leave the police station with the Appellants;
that when they left,
it was by agreement with the deceased and there was no conflict or
rather that they were sent away by the
police officers in the charge
office to go and sort out their differences. Further, that there was
'no intention' or sign of violence
or resistance from the
deceased.
[2]
[10]
Accordingly, Mr Somo submitted that the State had failed to prove its
case beyond a reasonable doubt against Appellant 1.
[11]
It was further contended on behalf of the Appellants that the fact
that they did not testify in their defence did not alleviate
the
State's onus to prove its case against the Appellants beyond a
reasonable doubt.
[12]
In addition, Appellant 3 raised a
point in limine
in
her supplementary heads of argument. Appellant 3 contended that the
Magistrate committed an irregularity in that she did not
administer
the oath to any of the three State witnesses who gave evidence in
court in compliance with the provisions of Section
162 of the Act.
[13]
Accordingly, it was submitted that the evidence of all the
State witnesses whereupon the conviction was based is inadmissable.
As
such, that there is
"no evidence"
before this
court whereupon this appeal can be adjudicated to determine whether
or not the Appellants committed any of the offences
they have been
convicted of.
[14]
The State called 3 witnesses, to
wit,
Ms Montheo Mureal
Sealetsa, Mrs Gloria Tshoba and Inspector Mosia Mabuye. All the
Appellants closed their case at the end of the
State's case and
elected to remain silent without presenting any evidence before
court. The Appellants' version was however put
to the witnesses
during cross-examination.
[15]
Prior to dealing with the witnesses' evidence, I shall first
deal with the
point in limine
raised by Appellant 3 as this
will determine how the matter proceeds, if at all.
APPLICABLE
LEGAL PRINCIPLES
Point
in Limine
[16]
Appellant
3
contends
that the Magistrate failed to administer the oath to all the three
witnesses who testified in the trial as required by
Section 162 of
the Act. As such, that in line with the unreported Full Court
judgment by the North West High Court Division per
Hendricks J in
Pilane
v The State
[3]
,
such
'evidence' lacks the status and character of evidence and is
therefore inadmissible. Accordingly, it was submitted, in line
with
the
Pilane
finding,
that there is no evidence before this court whereupon this appeal can
be adjudicated to determine whether or
not the
Appellants committed the offence they have been convicted of.
[4]
Pilane
(supra)
was
subsequently confirmed by the Supreme Court of Appeal in
Machaba
&
Another
v The
State.
[5]
[17]
Subsequently,
a similar issue in
The
State v Maloma
[6]
was
referred to the Full Court of this division on a special review by
the regional court Magistrate of Lydenburg, in
terms of
Section 304
(4)
of the
Act.
[18]
After considering
Pilane
and the Supreme Court of
Appeal cases relied upon in
Pilane,
the Court agreed with the
finding that the provisions of Section 162 of the Act are peremptory
but disagreed with the conclusion
that if the oath was not
administered by the presiding officer but interpreter, such evidence
was inadmissible and irregular thereby
vitiating the entire
proceedings. To that end, this Court
per Bam J (Mlambo JP and
Potterrill J concurring)
stated thus:
"What, however,
the North West Court, with respect, did not consider, are the
provisions of section 165. This may
be due to the fact
that counsel appearing for the appellant and
the State, for an unknown and inexplicable
reason, failed or
neglected to draw the Court's attention to that section, and for that
matter, the country wide Jong standing
of the application thereof in
all our criminal courts.... Subsequently, in the matter of Machaba
and Another v The State (20401/2014)
[2015] ZASCA 60
(8 April
2015) the Supreme Court of Appeal, in paragraphs [BJ and [9] of the
judgment, with reference to Pilane, confirmed
that it is peremptory
in terms of section 162 that either the presiding
judge, or the registrar in the case of
a
superior
court should administer the oath to witnesses.
The
question whether it was justified in law that the interpreter is
empowered to administer the oath. was
not addressed
and the Court was clearly not called upon to consider Section 165.
The Court merely referred to
the
provisions
of section 162. Accordingly the decision in Machaba. with respect.
did not solve the problem. It follows. with respect.
that the
North West Division's conclusion, whilst the
Court
did
not
consider Section 165. cannot be followed.”
[7]
(emphasis
provided).
[19]
The
Full Court then concluded that an oath administrated by an
interpreter was consistent with the provisions of Section 162 read
with Section 165 of the Act. Accordingly, that an oath administered
as such is
not
irregular.
[8]
[20]
In
casu,
the following appears from the record:
"COURT: Madam your
full names please?
EVIDENCE FOR THE STATE
MONTHEO MUREAL SEALETSA
(d.s.s)
(through interpreter)
COURT:... Has she been
sworn in Mr Interpreter?...
INTERPRETER: Sworn
in...
[9]
GLORIA TSHOBA:
(d.s.s)
(through interpreter)
[10]
SEKGWARE MOSIA MABUYE:
(d.s.s)
INTERPRETER: Sworn
in."
[11]
Section
165 of the Act provides:
"Where the person
concerned is to give his evidence through an interpreter or an
intermediary appointed under section 170A
(1), the oath,
affirmation or admonition under section 162, 163
or 164 shall be administered by the
presiding judge or judicial
officer or registrar of the court, as the case may be,
through the
interpreter or intermediary or by the interpreter or
intermediary in the presence or under the eyes of the
presiding judge or
judicial
officer, as the
case may be.
(emphasis provided)
[21]
As evinced by the record above, the oath of all the three State
witnesses was administered by the interpreter
'in the presence
or under the eyes'
of the presiding Magistrate. All three
witnesses gave evidence through the interpreter. Accordingly, the
oath was administered in
compliance with the provisions of Section
162 read with Section 165 of the Act. As such, the evidence of all
three State witnesses
is admissible.
[22]
Now to deal with the witnesses' evidence.
Ms
MONTHEO MUREAL SEALETSA (1
st
State Witness)
[23]
Ms Sealetsa testified that the deceased was her boyfriend and
that on the day of the incident, the deceased left home around 8h00
in the morning. Whilst the deceased was away, two men arrived, one of
whom she identified as Appellant 1. The two men spoke to
the
deceased's mother within her earshot, alleging that the deceased has
stolen their vehicle. Then Appellant 1 requested the deceased's
mother to give him the deceased's cellphone numbers which she did.
[24]
Then at approximately 12h30 one of those people phoned the
deceased's cell phone which the deceased had left at home. She
answered
the phone and informed the person that the deceased was not
home. She then immediately called one of the deceased's friends and
asked him where the deceased was. The friend advised her that they
were together at a complex in Silverton. She then went to the
complex
where they were. When she got there, she found the deceased and
informed him that there were men looking for him alleging
that he had
stolen their car. The deceased said that he knew nothing of the car.
She then advised the deceased that they should
go to the police
station.
[25]
When they got to the police station, they informed the police
officer in the charge office that the deceased is accused of having
stolen a motor vehicle. The police officer informed them that there
was such a case reported. Whilst talking to that police officer,
the
person called the deceased's cellphone again and the deceased
informed him that he was at the police station and that they
would
find him there.
[26]
Whilst there, six people entered the charge office, four men
in the company of two women. Appellants 1, 2 and 3 formed part of
that
group of six. The group, including the Appellants, started
assaulting the deceased inside the charge
office,
accusing him of stealing their
vehicle. They used their open hands and fists to assault the deceased
on
his face and body. The police officers then chased them out of the
charge office and told them to go outside and resolve their problem.
The group dragged the deceased outside whilst assaulting him in the
process. Appellant 3 hit the deceased once on the back with
her hand.
She kept on saying that the deceased should show them their vehicle
whilst the other three, which included Appellants
1 and 2, were
dragging him outside. She tried to assist the deceased and Appellant
2 slapped her.
[27]
When they got outside the charge office, Appellants 1, 2 and 3
continued assaulting the deceased with clenched fists over his body.
Appellants 1 and 2 dragged the deceased towards the car they came
with and forced the deceased into that car. At that time, Appellant
3
was already sitting in the car. The deceased was placed at the
backseat and all six, including the Appellants, drove away with
the
deceased to an unknown location.
[28]
She then went to the deceased's home and reported the incident
to the deceased's mother. She and the deceased's mother then went
back to the police station and a police vehicle was organised for
them to look for the deceased. The deceased was eventually found
at
approximately 22h00 in hospital, unconscious and severely injured.
The deceased passed away at approximately 01h00 the following
morning. Ms Sealetsa testified that she did not know any of
the Appellants prior to
that
day.
MRS
GLORIA TSHOBA (2
nd
State witness)
[29]
Mrs Tshoba testified that the deceased was her son. He was 35
years of age at that time. On the day of the incident, 2 September
2006 at approximately 8h08 in the morning, she was approached by two
unknown young men whilst sweeping outside her home. She identified
one of the young men as Appellant 1 and the other one called
himself
Peace.
They told her that the deceased had stolen their car. She informed
them that the deceased was not home and advised them to
report the
matter to the police but they refused, alleging that the police do
not do their work.
[30]
She also suggested that they call the deceased so that they
can talk about this issue at home, but they didn't. Then they left.
As they left, one of them said that they were going to arrange people
to kill the deceased.
[31]
When the deceased arrived home, she advised him to go and
report the matter to the police station. The deceased then left with
Ms
Sealetsa, the first State witness for the police station. Then
later at around 12h30 four men came to her home, again looking for
the deceased. It was the first two men who came earlier accompanied
by two other men. She told them that the deceased has left
for the
police station. They then asked for the deceased's cellphone numbers
which she gave to them thinking that they were reasonable
people and
were going to sit down and talk about that issue. They then called
the deceased who told them that he was at the police
station and if
they wanted to see him they should come to the police station. They
then left.
[32]
Later on Ms Sealetsa came home and reported that the men in a
red VW Golf had come into the police station and dragged the deceased
from behind the counter at the charge office after the police officer
told them to go outside and continue with their argument
outside. Ms
Sealetsa reported that they had forced the deceased into the red VW
Golf and taken him to an unknown location.
[33]
She then went to the police station with the first State
witness and the first State witness pointed out the police officer
who
had chased them out of the charge office, one Mr Ralothaga. She
then confronted Ralothaga, asking him why
he
allowed those people to drag the
deceased out of the charge office. Ralothaga's response
was that they
were making a noise and he thought they knew each other. She then
requested him to accompany them to Maseko where
she had heard that
they had taken the deceased and that they were fighting. Ralothaga
told her that he cannot accompany them as
there was no escort and no
police vehicle to transport them. They were told to sit outside and
wait.
[34]
After some time, whilst waiting, she decided to call her younger
brother Phillip who then came to the police station. Then
another
police officer arrived and said that he will escort them and they
left for Maseko. Her brother followed them in his vehicle.
When they
arrived at Maseko they were advised that nothing was happening there.
Whilst driving around, the driver of the police
vehicle received a
message on the radio that there was an emergency and he took them
back home and left. Later on, her brother
Phillip phoned her and
informed her that they had found the deceased at a particular place
and he was badly injured and they were
waiting for an ambulance to
take him to hospital. He said he will come fetch her so they could go
to hospital together.
[35]
Her brother came and they went to hospital. When they arrived, they
found the deceased unconscious and swollen on his head,
face and
shoulders. They sat in hospital and at around 01h00 the following
morning, they were advised that the deceased had passed
away.
INSPECTOR
MOSIA MABUYE (3rd State witness)
[36]
Inspector Mabuye testified that he was on duty the day of the
incident and had attended to a complaint that they had received
about
a mob justice incident at Vista Campus in Mamelodi. He went there
with his colleague, Inspector Mathe. When they arrived,
they found a
group of people who pointed them to a room and said that that is
where they should go check. They went to that room
and found the door
closed. They knocked and Appellant 3 opened the door for them. They
were advised that the room belonged to Appellant
2.
[37]
Inside the room, they found a gentleman lying on the floor on his
back, half naked from the top. The gentleman appeared assaulted.
The
room was ransacked and there was water lying around the floor. The
gentleman was not bleeding but had a swollen face and his
whole body
appeared swollen. It also appeared as if water was poured over his
head. He then asked the two ladies, Appellants 2
and 3, who had
assaulted the gentleman. Appellant 3 said that it was two of their
gentlemen friends who had accused the victim
of stealing their car.
He asked them where they were and Appellant 3 said that they had left
to look for their car at SNS.
[38]
Inspector Mabuye testified that because the victim was just lying on
the ground and not speaking, he realised that he was still
alive but
unconscious. He then requested Inspector Mathe to call an ambulance
which he did. Whilst waiting for the ambulance, a
gentleman came and
said that he was looking for his nephew who is injured. The ambulance
came and they took the victim to hospital.
Inspector Mabuye further
testified that the deceased did not sustain any further injuries from
the time the ambulance came to fetch
him until he arrived in
hospital.
[39]
Although the Appellants did not testify in their defence, the
Appellants' version was put to the State witnesses under cross
examination. From that version, the following became common cause:
39.1
Appellant 1 visited the deceased's residence in the morning of the
incident to confront the deceased about
his stolen vehicle;
39.2
Appellant 1 received the deceased's cellphone number from the
deceased's mother;
39.3
the Appellants met the deceased and the first State witness at the
police station in Mamelodi later that
day;
39.4
the Appellants interacted with the deceased inside the charge office
and were instructed by a police
officer there to go outside,
which they did, after the deceased confirmed the whereabouts of
the stolen motor vehicle;
39.5
Appellant 1 and one Given went back to the deceased's home with two
other men in a red VW Golf later that
day;
39.6
the Appellants left the police station with the
deceased for the deceased to show them
where the stolen vehicle was;
39.7
the deceased was found lying on the floor in a room in the presence
of Appellants 2 and 3;
39.8
the deceased was Thembi Nkosi Velaphi Tshoba;
39.9
the deceased died as a result of a blunt
"head injury"
as recorded by the Pathologist.
[40]
Although the Appellants denied assaulting the deceased, the
following facts were not placed in dispute:
40.1 the police
searched for the deceased after Ms Sealetsa and the deceased's mother
Mrs Tshoba reported him being taken
against his will;
40.2 Inspector
Mabuye received a report of mob justice at Vista Campus which he
attended to with his colleague Inspector Mathe;
40.3 Inspectors
Mabuye and Mathe were pointed to a room by a group of people who
advised them that the room belonged to Appellant
2 and they should go
and check in that room;
40.4 Appellant 3 opened
the door for them;
40.5 they
found the deceased badly assaulted and lying on the floor in that
room half naked from the top;
40.6
Appellant 3 told them that the deceased was assaulted by their
friends who had accused him of stealing their car
and they had left
to look for their car at SNS;
40.7 the
deceased was still alive but could not speak and swollen on his face
and his whole body when found;
40.8 the room
where the deceased was found was ransacked and there was water on the
floor;
40.9
Inspector Mathe called an ambulance which came and took the deceased
to hospital;
40.10 the
deceased did not sustain any further injuries from the time the
ambulance picked him up from the room to hospital;
40.11 the deceased
died later in hospital due to the injuries he sustained on that day.
[41]
The Magistrate sitting with two assessors analysed the evidence as a
whole and found that, although
the first
State witness was a single witness, and that caution as
contemplated in Section 208 of the Act should
be applied, her
evidence was satisfactory in all material respects. The Magistrate
found the first State witness' evidence to be
credible and reliable
as a whole, notwithstanding the contradictions in her evidence, which
the court found not to be material.
The court found the first State
witness to be an honest witness who did not have any motive to
implicate any of the Appellants.
[42]
In addition, the court found that her evidence was corroborated by
the second State witness, Mrs Tshoba that Appallent 1 was
amongst the
two men who came earlier looking for the deceased and among the
four who came later looking for the deceased.
As such, the court
found that her version was credible and probable.
[43]
The Magistrate also found the second State witness' evidence credible
and reliable. With regard to the third State witness,
the court held
that his evidence was undisputed that
he found the deceased seriously
injured but still
alive in a room that belonged to Appellant
2, in the presence
of Appellants 2 and 3.
[44]
The trial court rejected the Appellants' version as put to the
witnesses under cross examination that the Appellants did not
assault
the deceased and dragged him forcefully outside the police station
and drove away with him without his consent. Then the
court stated
that since there was a
prima facie
case against the Appellants
and the Appellants chose, which was their constitutional right, not
to give evidence in their defence,
the court only had the State's
version on which to determine their guilt or innocence. The court
found that since the State's evidence
was uncontroverted, the
prima
facie
case against the Appellants became conclusive because there
was nothing to compare it with. The court then found that the
evidence
established beyond a reasonable doubt that the Appellants
took part in the offences they were charged with. The
court
found the Appellants guilty on the basis of common
purpose for the murder and kidnapping of the deceased.
APPELLANTS'
GROUNDS OF CONTENTION
[45]
The Appellants contend that the Magistrate misdirected herself in
finding that since the State's case was uncontroverted, the
State has
proved the Appellants' guilt beyond a reasonable doubt, more
particularly since there was no evidence before court to
support the
charges proffered against the Appellants.
[46]
It was contended on behalf of the Appellants that the first State
witness contradicted herself on who assaulted and dragged
the
deceased out of the charge office. It was further contended that
there was evidence that the deceased was assaulted by a mob
and there
was no evidence when the deceased was found that any of the
Appellants were part of the mob that assaulted the deceased
that led
to his death.
[47]
It was further submitted on behalf of Appellant 1 that he was also
not present in the room where the deceased was found by
the two
police officers, injured and unconscious. With regard to Appellant 3,
it was contended that there was no evidence that
she was involved in
the assault of the deceased other than that she was found in the same
room with the deceased.
ANALYSIS
OF THE EVIDENCE
[48]
The correct approach to the evaluation of evidence in a criminal
trial was enunciated by the Supreme Court of Appeal in
S v
Chabalala
as follows:
"...
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 results may prove
that
one scrap of evidence or one defect in the case for either party
(such as the failure to call 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 on to one (apparently) obvious aspects without
assessing it in the
context of the full picture presented in
evidence...
This salutary
approach was also adopted in S v Trainor 2003
(1)
SACR 35
(SCA) para
9.”
[12]
[49]
The Supreme Court of Appeal in
S
v
Phallo and
Others
[13]
enunciated
the
correct
approach regarding proof as
follows:
"....
Where does
one draw
a
line between proof beyond reasonable doubt and
proof on
a
balance of probabilities? In our law, the classic
decision is that of Malan JA in R v Mlambo
1957 (4) SA
727
(A).
The learned Judge deals, at 737 F
-
H, with an argument
(popular at the Bar) that proof beyond reasonable doubt requires the
prosecution to eliminate every hypothesis
which is inconsistence with
the accused's guilt or which, as it is also expressed, is consistent
with his innocence. Malan JA rejected
this approach, preferring to
adhere to the approach which 'at one time found almost universal
favour and which has served the purpose
so successfully for
generations' (at 738A). This approach was then formulated by the
learned Judge as follows (at 738A-C):
'In my opinion, there
is no obligation upon the Crown to close every avenue of escape which
may be said to be open to an accused.
It is sufficient for the Crown
to produce evidence by means of which such
a
high degree of
probability is raised that the ordinary reasonable man, after mature
consideration,
comes to the conclusion that there
exists no reasonable doubt that an accused has committed the crime
charged. He must, in other
words, be
morally certain of
the guilt of the accused.
An accused's claim to
the benefit of
a
doubt when it may be said to exist must not
be derived from speculation but must rest upon
a
reasonable
and solid foundation created either by positive evidence or gathered
from reasonable inferences which are not in conflict
with, or
outweighed by, the proved facts of the case'.
(See also S v Sauls
and Others
1981 (3) SA 172
(A) at 182G
-
H; S v
Rama
1966 (2) SA 395
(A) at 401; S v Ntsele 1998 (2) SACR 178
(SCA) at 182b h.)
[14]
[50]
The Court
proceeded to state that the approach of our law as represented in
R
v Mlambo (supra)
corresponds
with that of the English Courts as set out in
Miller
v Minister of Pensions per Denning J
that
proof beyond reasonable doubt does not mean proof beyond the shadow
of a doubt. Otherwise, the law would fail to protect the
community if
it admitted
"fanciful
possibilities"
to
deflect the cause of justice. As such, it is said that if the
evidence is so strong against the accused as to leave only a remote
possibility in his favour which can be dismissed with the sentence of
"of
course it is possible, but not in the least probable",
then
the case is proved beyond reasonable doubt.
[15]
[51]
The evidence of the first State witness Ms Sealetsa was that she
observed the Appellants at the police station assaulting the
deceased with open hands and fists. She also testified that she
also observed at least Appellants 1 and 2 together with other
members
of the group dragging the deceased into a red VW Golf and leaving
with the deceased. Although it was not clear from the
witness'
evidence of the sequence of who assaulted the deceased where and who
was involved in the dragging of the deceased and
at what stage, the
witness was adamant even during cross-examination that the Appellants
at one stage or the other were involved
in both the assault and the
dragging of the deceased outside the charge office. The witness
however did testify that at the
time of dragging the deceased
into the car, Appellant 3 was already sitting at the back seat of the
car. That was the last time
the first witness saw the deceased until
she saw him again later in hospital injured and unconscious,
whereafter the deceased died
in the early hours of the morning as a
result of the injuries sustained on that day.
[52]
The evidence of the second witness, the deceased's mother, although
not having witnessed the assault and the kidnapping itself,
corroborates the evidence of the first witness that Appellant 1, in
the company of another young man, came to her home early that
morning
looking for the deceased alleging that the deceased has stolen their
car. This witness testified that when they left, they,
or at least
one of them, had threatened that they were going to find people to
kill the deceased. Later during that day, around
12h30, Appellant 1
and that same gentleman came to her home again, accompanied by two
other men still looking for the deceased,
whereafter she gave them
his cellphone numbers which they used to call the deceased in her
presence. Thereafter they left for the
police station.
[53]
Appellant 1's version also corroborates the first witness' evidence
that they did go to the police station in a red VW Golf
and found the
deceased there and left with the deceased. The Appellants' version
put to the witnesses under cross-examination was
that the deceased
was not kidnapped from the police station but had voluntarily
left with them to show them where
the car was.
[54]
The deceased's mother further corroborates the first witness'
evidence that they later found the deceased in hospital,
unconscious and badly injured, and that the deceased
later died in the early hours of the morning in hospital as a
result
of the injuries sustained on that day.
[55]
Inspector Mabuye's evidence was that he found the deceased still
alive in Appellant 2's room after being directed there by
a group of
people he found standing outside at Vista Campus. He testified that,
after they had knocked on the door, Appellant 3
opened the door for
them and they found the deceased lying on the floor, half naked from
the top and swollen all over the body
and the head. The deceased
appeared to be unconscious. It was further the third State witness'
evidence that Appellant 3 informed
him that the deceased was
assaulted by their friends who had left to look for their car. He
testified that inside the room
where he found the deceased, the
room was ransacked and there was water on the floor as if
someone had poured water
over the deceased. He then requested his
colleague to call an ambulance which came and took the deceased to
hospital.
[56]
This witness also corroborated the deceased mother's evidence that a
gentleman came in whilst they were in that room waiting
for an
ambulance who informed him that he was looking for his nephew and he
had heard that he was in that room. Save to state that
it was put to
this witness that the deceased was assaulted by a mob, his evidence
was not disputed by any of the Appellants. Under
cross-examination,
it was sought to infer that the group that this witness found
standing outside could have been the mob that
had assaulted the
deceased. The witness disagreed and went as far as stating that that
group did not interfere with
them in any way and were just
sitting dormant there.
[57]
In my view, each State witness was to a large extent a single
witness with regard to the evidence that they tendered
in
court. Each gave evidence of what unfolded on that day, giving a
separate account of what each witnessed.
What
is however interesting is the evidence;
tendered by each witness is a piece of a puzzle that,
when viewed
together, gives a complete picture of what transpired on that fateful
day when the deceased died. Ms Sealetsa's evidence
is the only
evidence that gives an account of the assault and kidnapping of the
deceased by the Appellants. As such, she is a single
witness in that
regard.
[58]
In
terms of Section 208 of the Act, an accused may be convicted of any
offence on the evidence of any single competent witness.
In
S
v
Teixeira
[16]
the Appellate Division observed that in evaluating the evidence of a
single witness, a final evaluation can rarely, if ever, be
made
without considering whether such evidence is consistent with the
probabilities. Later, the same court amplified upon this
principle in
S
v
Sauls
and
stated
thus:
"There is no rule
of thumb test or formula to apply when it comes to
a
consideration
of the credibility of the single witness... the trial Judge will
weigh his evidence, will consider its merits and
demerits and, having
done
so
will
decide whether it is trustworthy and whether despite the fact
that there are short comings or defects or contradictions
in his
testimony, he is satisfied that the truth has been told.
The
cautionary rule... may be
a
guide
to
a
right
decision but it does not mean that 'the appeal must succeed if any
criticism. however slender. of the witness' evidence were
well
founded.. .it has been said more than once that the exercise of
caution must not be allowed to displace the exercise
of common
sense"
[17]
.(emphasis
provided).
[59]
In the premises, viewing the evidence of the three State
witnesses as a whole and not in isolation as
the
Appellants sought to do, and the
facts that were common cause and
undisputed,
the Magistrate was correct in refusing to grant the
Appellants a discharge in terms of Section 174 of the Act at the
close of the
State's case and ruling that there is
a
prima facie
case
against the Appellants which the
Appellants
had to answer.
[60]
The
Appellants chose to exercise their constitutional rights not to
testify. However, it is said that where there is
prima
facie
proof
of the accused's guilt, as it was
in
casu,
the
election of the accused not to testify, although not presupposing
that an adverse inference can be drawn against the accused
per
se,
entails
certain consequences for that accused. One of those
consequences is that the
prima
facie
evidence
left uncontroverted, might be found to be sufficient proof of
the
accused's
guilt.
[18]
[61]
The Constitutional Court in
S
v Boesak
[19]
per Langa DP stated as follows in that regard:
"The fact that an
accused person is under no obligation to testify does not mean that
there are no consequences attaching to
a
decision to remain
silent during the trial.
If there is evidence calling for
an answer, and an accused person chooses to remain silent in the face
of such evidence.
a
court may well be
entitled to conclude that the evidence is sufficient in the
absence of an explanation to prove the guilt
of the accused.
Whether such
a
conclusion is justified will depend on the
weight of the evidence." (emphasis provided)
[62]
It is common cause that there is no direct evidence
per
se
that
links the Appellants to the death of the deceased
save for the assault of
the
deceased at the police station on that day. As such, the State's case
of the Appellants' involvement in the deceased's death
rests on
circumstantial evidence. The Supreme Court of Appeal in
S
v
Cwele
[20]
per Mpati P, stated as follows
with regard to the assessment
of
circumstantial
evidence:
"In S v Reddy
&
Others
1996 (2) SACR 1
(A), this court said the following
regarding the assessment of circumstantial evidence:
'In
assessing circumstantial evidence one needs to be careful
not to approach such evidence upon
a
piecemeal basis and to
subject each individual piece of evidence to
a
consideration
of whether it excludes the reasonable possibility that the
explanation given by the accused is true.
The evidence
needs to be considered in its totality. It is only then that one can
apply the oft-quoted dictum in R v Blom 1939 AD
188 at 202 3. where
reference
is made to two cardinal rules of logic
which cannot be ignored. These are. first. that the inference sought
to be drawn must be
consistent with all the proved facts and.
secondly. the proved facts should be such 'that they exclude every
reasonable inference
from them save the one sought to be
drawn
.'
(emphasis provided).
The state must
therefore satisfy the court, 'not that each separate fact is
inconsistent with the innocence of the {appellants],
but that the
evidence as
a
whole is
beyond reasonable doubt inconsistent with such innocence".
[21]
[63]
Prior to the deceased's death, Appellant 1 and his companion had
threatened to find people to kill the deceased. Later that
same day,
Appellant 1, in the company of the same companion and of two other
men, again went to
look
for the deceased at his
home. After discovering that
the deceased was at the police
station they immediately followed him there in the company of
Appellants 2 and 3. They accosted
the deceased there and dragged him
to the car they were in, with the sole purpose of ensuring that the
deceased was going to show
them where he took their car.
[64]
The evidence of the first State witness is that they started
assaulting the deceased from inside the charge office
all the
way out, while dragging him to the car that was transporting them and
whilst Appellant 3 was shouting that the deceased
tell them where he
took the car. They forced the deceased into the car and left with
him. The next time the deceased was seen he
was found lying half
naked, badly assaulted and unconscious in Appellant 2's room in
the presence of Appellants 2 and 3.
[65]
Appellant 1
failed, after admitting that he together with other Appellants left
the police station with the deceased, to explain
where they
took the deceased and where they left him thereafter, if at all.
Neither did Appellant 3 explain why she was found in
the same room
where the deceased was found lying on the floor badly injured and
unconscious
2
[22]
[66]
In addition, there was no evidence tendered that sought to break the
chain from the time when the deceased was accosted, assaulted
and
dragged into the Appellants' car and driven off from the police
station, and the time the deceased was found hours later, badly
injured and unconscious in Appellant 2's room in the presence of both
Appellant 2 and 3.
[67]
In the premises, the only reasonable inference that could be drawn in
the circumstances is that the people who assaulted and
dragged the
deceased into the car and left with him from the police station
are the same people that further
assaulted the deceased,
which assault eventually led to his death. To suggest that the
deceased could have been assaulted by the
group or 'mob' that the
third State witness found standing outside within the proximity of
the room where the deceased was found,
is not only improbable but
devoid of truth, as there was no evidence that sought to link the
deceased with that group. In any event,
the undisputed evidence of
Inspector Mabuye that Appellant 3 informed him that the deceased was
assaulted by their friends was
never challenged.
[68]
It was argued on behalf of Appellant 1 that there was no evidence
that he was present when the deceased was found. As such,
that there
is no evidence that Appellant 1 was involved in the assault of
the deceased. This argument is without merit as
the absence of
Appellant 1 at that stage is explained by Appellant 3 to the
third State witness that he and the other
friends of the
Appellants have left to search for the car in SNS after
assaulting the deceased.
[69]
In the light of the above, in my opinion, the only inference that can
be drawn from these facts is that, after the Appellants
assaulted the
deceased at the charge office and dragged him from the police station
into the car, they took him to Appellant 2's
room where they
continued assaulting him to confess where he had taken Appellant 1's
car. From the second State witness evidence,
Appellant 1 in the
company of another gentleman had threatened to find people to kill
the deceased. Later that same day, Appellant
1 in the company of the
same gentleman, now accompanied by two other men, again came to her
home looking for the deceased, whereafter
they went to the police
station and, according to the first State witness started assaulting
the deceased, dragging him into their
car and leaving with him to an
unknown location. The next time the deceased was seen he was badly
injured and unconscious, whereafter
the deceased died in hospital the
following morning not having regained consciousness.
[70]
In the premises, the only reasonable inference that could be
drawn from these facts is that, at the least, Appellant
1 and his
co-perpetrators made good on their threats by beating the deceased
until he died later as a result of the assault.
[71]
It was argued on behalf of Appellant 3 that even if it was found that
she hit the deceased with an open hand on his back at
the police
station, there was no other evidence that she was involved further
in the assault of the deceased that led to
his death. It was
further argued that there was no evidence that Appellant 3 was
present at the deceased's home when Appellant
1 and the other
gentleman allegedly threatened to find people to kill the deceased.
[72]
Accordingly, it was submitted that the Magistrate misdirected herself
when she found Appellant 3 guilty of murder on the basis
of having
formed a common purpose with the other Appellants.
It was submitted that, at the least,
Appellant 3 should have
been convicted of common assault and given a non custodial sentence.
[73]
To counteract Appellant 3's contention, the State submitted that it
was not relying on a common purpose on the basis that there
was a
prior agreement to commit the crime.
[74]
The State argued that not only did Appellant 3 assault the deceased
at the police station, which it submitted was sufficient
for the
purpose of forming a common purpose, but Appellant 3 was also found
in the same room that the deceased was found,
badly injured and
unconscious. Accordingly, that Appellant 3 associated herself with
the actions of the other Appellants by not
calling an ambulance or
the police to assist the deceased. It was further argued by the
State that the condition of
that room was in such a state such
as to infer that that was where the deceased was assaulted and
Appellant 3 was present during
that time. The State further contended
that the only reason that could be inferred for
Appellant3's presence when the
deceased was found was to keep the
deceased there until the car was found.
[75]
Accordingly, the State submitted that the only inference that can be
drawn from the above is that Appellant 3 had common
purpose with other Appellants who assaulted the
deceased which assault led to his death.
[76]
The Supreme
Court of Appeals in
Scott
&
others
v
S
[23]
,
considered
the circumstances where there was no proof of prior agreement to
commit the offence and held that the co-accused can
be convicted on
the basis of common purpose if:
"(a)
they were present where the violence was committed;
(b)
they were aware of the assault on the [victim] and the
deceased;
(c)
they intended to make common cause with the perpetrator(s) of
the assault;
(d)
they manifested their sharing of
a
common purpose with
the perpetrator(s) of the assault by themselves performing some
act of association with the conduct
of the perpetrator(s); and
(e)
they
had the requisite mens rea concerning the unlawful outcome at the
time the offence was committed, ie [they] intended the criminal
result or foresaw the possibility of the criminal result ensuing and
nevertheless actively associated themselves recklessly as
to whether
the result was to ensue (see S v Safatsa
&
Others
1998 (1) SA 868
(A); S v Mgedezi
&
Others
1989 (1) SA 687
(A) and S v Thebus
&
Another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) at paragraph
[49]
)."
[24]
[77]
I agree with the State's submission in this regard. Not only did
Appellant 3 assault the deceased at the police station,
but Appellant
3 was also present where the deceased was found, badly injured and
unconscious, a few hours after he was accosted
and assaulted at the
police station and driven off in the same car Appellant 3 was riding
in. The only inference that could be
drawn from these facts is that
Appellant 3 was at all times present when the deceased was further
assaulted in the room in
which he was found, which room was
observed to be ransacked by Inspector Mabuye.
[78]
In
addition, keeping the deceased there in the condition he was in,
without getting him medical assistance evinces Appellant 3 actively
associating herself with the common purpose of the other Appellants
and assailants. As such, even if Appellant 3 was not party
to the
prior agreement to kill the deceased, as argued by her counsel,
Appellant 3, by her conduct, must have, at the least, foreseen
the
possibility of the deceased dying and nevertheless associated herself
recklessly as to whether the criminal result would ensue
and it did.
Alternatively, Appellant 3
"acted
wrongfully, in the criminal sense",
by
not taking steps, such as calling an ambulance, to
prevent the imminent death of the deceased. By so doing, Appellant
3
was reckless as to whether the deceased would die.
[25]
Accordingly, Appellant 3 made common purpose with the other
Appellants and assailants, at the least on the basis of
dolus
eventualis.
[26]
[79]
In the light thereof, the trial court was correct in finding that on
the uncontroverted evidence presented by
the
State, and there being no other evidence to compare it
with, the State had proved its case against the Appellants
beyond reasonable doubt, at least insofar as the charge of murder is
concerned.
[80]
I however disagree with the
court
a
quo's
finding of a
guilty verdict against Appellant 3 with regard to the charge of
kidnapping. There was no evidence that Appellant 3
was involved in
the dragging of the deceased into the car from the police station. On
the contrary, it was the first State witness'
testimony that when the
deceased was dragged into the car by the other Appellants, Appellant
3 was already sitting in the car.
[81]
It is said
that in the absence of a demonstrable and material misdirection by
the trial court, the appeal court's powers
to interfere
with the findings of fact of the trial court are limited.
Consequently, that the trial court's findings of fact are
presumed to
be correct and unless the recorded evidence shows them to be clearly
wrong, such findings cannot be interfered with.
[27]
[82]
As set out above, the evidence tendered by the first State witness is
contrary to the
court
a
quo's
finding in this regard.
Accordingly, the trial court misdirected itself in this regard, by
concluding that the State has proved
beyond reasonable doubt the
guilt of Appellant 3 with regard to the kidnapping charge.
[83]
Save as aforesaid, I find the Magistrate's findings and reasons for
her judgment cogent in concluding that the State proved
beyond a
reasonable doubt that the Appellants are guilty of the first charge
of murder on the basis of common purpose and Appellant
1 on the
kidnapping charge.
I
now turn to deal with sentencing.
[84]
It is trite that the imposition of a sentence is pre-eminently within
the discretion of the trial court. It is a long established
principle
of our law that the appeal court should desist from altering the
sentence imposed by the trial court except in circumstances
where the
sentence imposed is either totally out of proportion to the gravity
or magnitude of the offence, or the sentence evokes
a feeling of
shock or outrage or the sentence is grossly excessive or insufficient
or there was an improper
exercise
of discretion by the trial court or the interest of justice requires
it.
[28]
[85]
The trial court did not even impose the prescribed minimum sentence
after convicting the Appellants of murder. Instead, the
court found
that there were substantial and compelling circumstances to deviate
from the prescribed minimum sentence. After considering
both the
mitigating and aggravating circumstances of the case, the court
imposed a sentence of 8 years direct imprisonment
for both
offences.
[86]
I therefore find no reason whatsoever to interfere with the sentence
imposed by the trial court save insofar as it relates
to Appellant
3's conviction on the kidnapping charge.
[87]
In the premises, I propose that the following order be made:
1.
the Appellants' appeal against the murder conviction is
dismissed;
2.
Appellant 1's appeal against the conviction on the charge of
kidnapping is dismissed;
3.
Appellant 1's appeal against sentence is dismissed;
4.
Appellant 3's appeal against her conviction on the charge of
kidnapping is upheld and the conviction is set aside;
5.
Appellant 3's appeal against sentence for murder is dismissed;
6.
Appellant 3's sentence against the kidnapping charge is upheld
and the sentence is set aside and the trial court's sentence is
varied
as follows:
6.1
accused 3 is sentenced to 6 years direct imprisonment.
____________________________
NOBANDA
AJ
ACTING
JUDGE OF THE HIGH COURT
I
AGREE
AND
IT
IS
SO
ORDERED
____________________________
J
W LOUW J
JUDGE
OF THE HIGH COURT
[1]
Record p 194 line 22-p 195 line 1- 9 and 14-21.
[2]
Record p 205 line 20 - p 206 lines l-20
[3]
CA 10/2014 delivered on 5 March 2015.
[4]
At [9] after the court referred to, discussed and agreed with the
SCA's judgments in S v Raghubar 2013 (I) SACR 398 (SCA) and
Matshivha v S
[2016] JOL 33572
(SCA) (decided on 23 September 2013),
held that it was bound by those decisions based on the principle of
stare
decisis.
[5]
(20401/2014) [2015] ZASCA 60 (8 April 2015).
[6]
CA A376/2015 delivered on 27 May 2015 per Barn J (Mlambo JP and
Potterill J concurring).
[7]
paras 7-13
[8]
para 16
[9]
Record p17 lines 5 - 13
[10]
Record p62 line 1
[11]
Record p84 lines 10 - 11
[12]
2003 (I) SACR 134 (SCA) at [15]
[13]
S v Phallo & Others
1999 (2) SACR 558
(SCA) at 738 A - C.
[14]
at [ 10 ]
[15]
at [ 11 ]
[16]
1980 (3) SA 755
(A) at 761
[17]
S v Sauls 1981 (3)SA 172(A)
[18]
S v Brown en ander [1996] All SA 625 (NC)
[19]
2001 (1) SACR 1 (CC)
[2000] ZACC 25
; ;
2001 (1) SA 912
(CC) par [24]
[20]
S v Cwele and Another 2013 (I) SACR 478 (SCA)
[21]
at [19]
[22]
See, S v Boesak (supra)
[23]
[2011] JOL 27685 (SCA)
[24]
at [23]
[25]
See, Musingadi and others v S
[2004] 4 All SA 274
(SCA) at [42];
2005 (I) SACR 395 (SCA)
[26]
Ibid
[27]
S v Monyane & Others 2008 (I) SACR 543 (SCA); S v Hadebe &
Others 1997 (2) SACR 641 (SCA).
[28]
S v Anderson
1964 (3) SA 494
(AD) at 495. A number of cases from the
Supreme Court of Appeal have since expanded on this principle: Sv
Malgas
2001 (2) SA 1222
(SCA); Sv Blignaut 2008 (I) SACR 78 (SCA);
Sv Johaar & Another 2010 (I) SACR 23 (SCA); S v Truyens
2012 (1)
SACR 79
(SCA).