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[2016] ZAFSHC 83
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Togo v S (A17/16) [2016] ZAFSHC 83 (2 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEI N
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : A17/16
In
the matter between:-
KOOS
LETSHABO
TOGO
First Appellant
and
THE
STATE
Respondent
CORAM:
MOLOI, ADJP et MHLAMBI, AJ
HEARD
ON:
30 MAY 2016
DELIVERED
ON:
02 JUNE 2016
MOLOI,
ADJP
[1]
The appellant was granted leave to appeal his conviction on a
charge of murder and the sentence
of
fifteen (15) years imposed by the trial court. The general
grounds of appeal against the conviction were that the
trial court
erred in finding that the State had proved its case beyond a
reasonable doubt; that it erred in drawing an inference
from the
circumstantial evidence that the appellant stabbed and killed the
deceased; that it erred in finding that the state proved
the claim of
evidence regarding the DNA evidence and that it erred in making an
adverse finding when the appellant exercised his
right not to testify
during the trial.
[2]
The facts of the case are that on 14 October 2012 at 22h37 the police
were called to a scene of a fight at B-hostel, Thabong
Welkom.
Warrant Officer Van der Merwe and constable Mbongo rushed to the
scene. On arrival they noticed the appellant and another
being chased
by the members of the community. The appellant was jumping fences but
he and his co-accused were caught and taken
back to the scene where
the deceased was found lying on the ground. The deceased had multiple
stab wounds to his face, head, chest
and left wrist. He later
succumbed to these wounds.
[3]
The appellant was wearing white tekkies on which there was blood.
Near the deceased there were rocks lying around as well as
a knife
and its broken handle as well as a stick. Warrant Officer Nortjie, an
official police photographer was called to the scene.
He took
photographs of the scene and also removed the appellant's tekkies,
the broken knife and stick. He later compiled a photo
album which was
used in evidence in court. The people at the scene refused to tell
the police what happened.
[4]
During the trial Nortjie gave details of the markings he used on an
exhibit bag in which the exhibits were placed and later
handed in to
Alida Elizabeth Van Niekerk who was in charge of safekeeping of
exhibits. Nortjie also took a sample of
blood from the
deceased's face. The exhibits were later sent for analysis at the
police laboratory in Pretoria by Van Niekerk.
No person tempered with
the exhibits while in her custody. She put all the exhibits in an
exhibit bag and kept it safe until it
was sent to Pretoria for
analysis. Babalo Jeremiah Sekhonyane, employed by Forensic Pathology
Services of the Department of Health
in Welkom conveyed the body of
the deceased and later prepared it for autopsy. He allocated a death
register number after the body
was duly identified. He handed a blood
sample he received from Dr Van Heusden who performed the autopsy on
the deceased to Sgt
Nel having the same death register number he
allocated. Sgt Nel placed all the exhibits in an exhibit bag. A
section 212 (4) statement
of Warrant Officer Haig Tebatso Sedibe was
handed in. He analysed the exhibits and found the blood sample marked
FSE 704794, 10D4AA771
EB and WDR608/2012, the last being the number
allocated by Sekhonyane matched the blood found on the appellant's
tekkie. The appellant
did not testify.
[5]
In argument before us emphasis was placed on lack of proof of what
was eventually analysed by W/O Sedibe at the laboratory.
According to
Adv Kruger on behalf of the appellant there was no evidence that Dr
Van Heusden, who performed the autopsy on the
body of the deceased
gave a blood sample taken from the deceased's body to and that sample
is that was placed in the evidence bag
by Van Niekerk where-after the
bag was sent to the laboratory for analysis. The respondent, through
Adv Ferreira, on the other
hand, contended that Sekhonyane was with
Dr Van Heusden when the autopsy was performed and he was given the
sample and that sample
was marked with his death register number
being WDR608/2012 and he gave the sample to Sgt Ne! who, in turn,
handed it over to W/O
Nortjie on 23 October 2012 and placed it in
evidence bag marked PA300158690 0. Sekhonyane's evidence was
unchallenged and there
was consequently no need to call Dr Van
Heusden. Moreover, when the evidence bag reached the laboratory
Sedibe analysed the tekkie
marked FSE704794 and compared it
with the blood sample marked among other things WDR608/2012 and CAS
244/10/2012, all of
which was uncontroverted. The fact that Sgt Nel
said he gave the sample to Nortjie on 23 October 2012 whereas Van
Niekerk said
she gave it to Nortjie on 24 October 2012 is of no
consequence. According to the respondent the crucial issue is whether
the analyst
came into possession of the sample and analysed it:
S
v Boyce
1990 (
1) SACR 13
(T).
[6]
The second point argued before us was whether on the circumstantial
evidence placed on record, the court could accept it as
proof beyond
a reasonable doubt that the appellant is the one that stabbed the
deceased which led to his death. The issue become
circumstantial in
that there is no direct evidence of the actual stabbing. The people
that were at the scene refused to tell what
happened least of all
testify about it. The sum-total of what transpired is that there was
a fight near B-hostel is Thabong Welkom.
When the police arrived at
the scene, they found the crowd pursuing the appellant and another
person. The appellant was jumping
over the fences but was caught
within 60 metres of the scene and taken back to the scene. At the
scene it was realised the appellant's
one tekkie had blood on it. The
tekkie was taken for analysis and the blood on it matched that blood
sample taken from the deceased.
The appellant, when searched, nothing
was found in his possession. A broken knife was found lying next to
the appellant. The cause
of death was noted as
"Hemo-pneumothorax(R)
en
Pneumothorax (L)
as gevolg
van
steekwonde
(R)
long
en (L)
Longholte Vermoedelik
veroorsaak
deur
selfde
plat
skerp
voorwerp."
It was conceded that the body of
the deceased suffered no further injuries from the scene until the
autopsy was held. The appellant
tried to run away though it was
suggested on his behalf during the trial that he and his co-accused
ran away as they saw people
chasing another person. We do not have
evidence of this. The question is whether the facts above, justify
the inference as the
only inference to be drawn, that the appellant
is the person who stabbed the deceased:
R v Blom
1939 AD 188.
[7]
The answer to the above question would seem clear when we deal with
the third ground of appeal, namely that the trial court
erred in
making an adverse finding arising from the appellant's failure to
testify. Section 35(3)(h) of the Constitution of South
Africa Act 108
of 1996 provides for the accused person's rights to fair trial
"to
be presumed innocent, to
remain
silent
and
not
to
testify
during
the proceedings."
Whilst it is
true that inferences may be drawn against the accused where
he fails to testify
-
Mukona
v
The State
(97/15) [2015] ZASCA
128 delivered on 28/9/2015 and
S
v
Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC) at 923 E-F this can only
be done where the state has at least established a
prima
facie
case against the appellant
Osman
+ Another
Attorney
General
Transvaal
1998(4) SA
1224 (CC) para 22. In this case all the evidence
we have is that the
appellant and
another were fleeing the scene where
the deceased was lying down after being
brutally assaulted,
there were rocks and a stick near his body and a broken knife was
under his body and, importantly, the
deceased's blood was found on
the appellant's tekkkie. The cause of death was haemorrage of the
lungs caused by stabbing with a
flat object. The knife was taken from
the scene and no evidence was adduced whether it was also sent for
analysis nor whether the
appellant's finger and/or handprints were
found on it. Evidence, on the contrary, is that when the appellant
was searched after
arrest, nothing was found in his possession.
[8]
It would seem the only evidence on the basis of which the appellant
was convicted was the deceased's blood that matched the
blood on the
appellant's tekkie. The appellant was clearly at the scene and so
were many other people. One need not speculate how
the blood got onto
his tekkie as the actual cause of death was stabbing with a sharp
flat object and not kicking with a tekkie.
See Thembani Bamba v
The
State
(20089/14)
[2014] ZASCA 219
(11 December 2014). It
will be farfetched to infer the appellant's guilt out of the set of
facts placed before us and the appellant's
silence cannot prove that
he killed the deceased. The appeal must succeed.
[9]
In the premises one need not deal with
the question of sentence.
[10]
The following order is made.
1.
The appeal succeeds
2.
The conviction on a charge of murder is set aside
3.
The appellant
is found not guilty and is discharged.
__________________
MOLOI,
ADJP
I
concur
________________
MHLAMBI,
AJ
On
behalf of the appellant:
Adv Kruger
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv
Ferreira
Instructed by:
The DPP
BLOEMFONTEIN