About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2016
>>
[2016] ZAFSHC 184
|
|
Dlamini v S (A134/2016) [2016] ZAFSHC 184 (20 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: A134/2016
In
the matter between:
PHUMLA
ROBERT DLAMINI
Appellant
and
THE
STATE
Respondent
CORAM:
DAFFUE,
J
et
GELA, AJ
JUDGMENT
BY:
DAFFUE,
J
HEARD
ON:
10
OCTOBER 2016
DELIVERED
ON:
20
OCTOBER 2016
I
INTRODUCTION
[1]
On 29 March 2016 the appellant was convicted in the regional court on
a charge of murder and sentenced to 15 years’ imprisonment.
[2]
On 26 April 2016 leave to appeal against conviction was granted by
the court
a
quo
.
II
TWO
IRRECONCILABLE VERSIONS
[3]
The court
a quo
was confronted with two mutually destructive
and irreconcilable versions. The State’s version was
provided by the only
State witness, Mr Mandla Tokisa (herein later
referred to as “Mandla” as in the court
a quo
) and
the other version was put forward by the appellant.
[4]
Both men are self-confessed criminals and I shall elaborate on this
infra
.
On 9 April 2014 both, together with seven of their cohorts, were on
their way in a Toyota Quantum minibus (“Quantum”)
to the
Saaiplaas Goldmine plant in the district of Virginia. The
deceased, one Thabiso James Johnnie, referred to in the
evidence as
“Vuysile”, was part of the group. The driver of the
Quantum was one Questa.
[5] Mandla’s
version is as follows:
He
knew the deceased and appellant as well as the driver, Questa, well.
He forgot the names of the other occupants of the
Quantum. They
were on their way to the Saaiplaas plant in order
“
to
get inside the plant so that we can take the gold”
.
In order to achieve this they had to rely on their
“
connections”
.
He denied that they were on their way to rob or steal, but members of
the group were armed with firearms to protect them.
[6]
Although Mandla could not remember the names of the other occupants,
he denied that he had a friend named Thabo and that this
person had
accompanied them. Questa and the appellant were the architects
of the operation.
[7]
After they had picked him up, the Quantum stopped at appellant’s
house where after appellant went into the house and came
back with a
bag from which he took out two firearms. He handed one firearm
to the deceased and kept the other. However
on his version some
of the other occupants were also in possession of firearms.
[8]
At a stage, as they were approaching the plant, an altercation broke
out between appellant and Questa, the driver, apparently
because
appellant had called the mine security. Appellant, being
excessively under the influence of alcohol, became angry.
He
did not want to proceed with the operation and instructed all his
cohorts to hand over their firearms to him, he being seated
in front
in the co-driver’s seat.
[9]
The deceased handed over his firearm, but kept the magazine thereof
and refused to hand same over. Appellant alighted
from the
vehicle which had become stationery at that stage, opened the sliding
door and fired two shots towards the chest of the
deceased who was
sitting in the third row from the front. The others ran away.
Appellant dragged the deceased out of
the Quantum at which stage
Mandla went to the driver’s seat and drove off, but after a
short while the vehicle’s engine
cut out. Mandla heard
three further gunshots being fired and Questa saying to the appellant
that
“
you
have just killed him”.
Hereafter
Questa went to the Quantum and drove off.
[10]
Mandla testified that three people, the driver, one Sotho person and
he, were not in possession of firearms during this trip.
Appellant asked him and Questa after the shooting to tell the
deceased’s sister that he was killed by mine security.
[11]
Mandla denied appellant’s version put to him that there was an
argument between him, Thabo and the deceased during the
trip about
money owing by the deceased to them and that they threatened to use
their firearms, whereupon appellant asked the driver
to stop the
Quantum, but a shot was fired whilst the vehicle was still moving and
before appellant could intervene.
[12] Appellant’s
version is as follows:
He,
Mandla and the others were known to each other as they were involved
in the same industry or as he put it:
“
We
are doing the same work, all of us.”
Questa
and he were the organisers and he regarded the deceased as a close
friend.
[13]
That day three of the group carried firearms, to wit the deceased,
Mandla and Thabo. He testified about the quarrel between
Mandla
and the deceased about cheating in respect of an earlier robbery,
that he tried to calm them down, but to no avail where
after he
requested the driver to pull off the road after he had heard and seen
firearms being cocked by Mandla and Thabo.
A shot went off and
before he could reach the sliding door of the Quantum a second shot
was fired. People ran into the veld
and he followed them.
The next day he heard from Questa that Mandla had shot the deceased.
He denied that he was under
the influence of alcohol and stated that
he was a teetotaller since 2004.
[14]
The prosecutor put it to him during cross-examination that Questa
could not be traced to testify on behalf of the State, but
appellant
responded that Questa’s address was known to the State and that
the previous prosecutor actually had telephonic
contact with him
during a previous court appearance in February 2015.
III
GROUNDS
OF APPEAL
[15] The grounds of
appeal can be summarised as follows, i.e.:
(a)
That
the court
a
quo
erred in accepting the evidence of Mandla and rejecting the evidence
of appellant as false beyond reasonable doubt and that the
court
a
quo
failed to apply the necessary caution in respect of the evidence of
Mandla.
(b)
Furthermore
the court erred in finding that the evidence of Mandla, he being a
single witness, was clear and satisfactory in all
material respects.
(c)
In
the heads of argument prepared by Mr Kambi on behalf of appellant
which were adopted with approval by Ms Kruger during oral argument
much was said about the incorrect approach by the court
a
quo
in its evaluation of the evidence and I shall deal with that once I
have considered the relevant legal principles.
IV
APPLICABLE
LEGAL PRINCIPLES
[16]
It is an established principle that where an appeal is lodged against
a trial court’s findings of fact the court of appeal
must take
into account that that court was in a more favourable position than
itself to form a judgment. Even when inferences
from proven
facts are in issue the court
a
quo
may also be in a more favourable position than the court of appeal,
because it is better able to judge what is probable or improbable
in
the light of its observations of witnesses who have appeared before
it. Therefore if there are no misdirections on fact
a court of
appeal assumes that the court
a
quo
’s
findings are correct and will accept these findings, unless it is
convinced that these are wrong. See
R
v Dhlumayo and Another
1948 (2) SA 677
(AD) at 705-6. Therefore in order to interfere
with the court
a
quo
’s
judgment it has to be established that there were misdirections of
fact, either where reasons on their face are unsatisfactory
or where
the record shows them to be such. See also
S
v Monyane and Others
2008 (1) SACR 543
(SCA) at para [15] where the SCA stated that it is
only in exceptional cases that it would be entitled to interfere with
the trial
court’s evaluation of oral evidence.
[17]
The advantages which a trial court enjoys should not be
over-emphasised
“
lest
the appellant’s right to appeal becomes illusionary”
,
as mentioned in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000 (1) SA 1
(CC) at para [79].
[18]
It is acceptable in evaluating the evidence in totality to consider
the inherent probabilities and the following
dictum
by Heher AJA, as he then was, in
S
v Chabalala
2003 (1) SACR 134
(SCA) at para [15] is apposite:
“
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.”
[19]
An accused’s version cannot be rejected merely because it is
improbable. It can only be rejected on the basis of
the
inherent probabilities if it can be said to be so improbable that it
cannot reasonably possibly be true. See
S v Shackell
2001 (2) SACR 185
(SCA) at para [30] which I quote:
“
It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that a mere
preponderance of probabilities is not enough. Equally trite is
the observation that, in view of this standard of proof in
a criminal
case, a court does not have to be convinced that every detail of an
accused’s version is true. If the accused’s
version
is reasonably possibly true in substance the court must decide the
matter on the acceptance of that version. Of course
it is
permissible to test the accused’s version against the inherent
probabilities. But it cannot be rejected merely
because it is
improbable; it can only be rejected on the basis of inherent
probabilities if it can be said to be so improbable
that it cannot
reasonably possibly be true
.”
See
also
Olawale
v The State
[2010] 1 All SA 451
(SCA) at para [13].
[20]
Section 208
of the
Criminal Procedure Act, 51 of 1977
provides that
an accused may be convicted of any offence on the single evidence of
any competent witness. When it comes to
the consideration of
the credibility of a single witness a trial court should weigh the
evidence of the single witness and consider
its merits and demerits
and having done so, should decide whether it is satisfied that the
truth has been told, despite any shortcomings,
contradictions or
defects in the evidence. See
S
v Sauls and Others
1981 (3) SA 172
(AD) at 180E-G.
[21]
The failure to call an available witness may not be without
consequences, especially where the State relies on the evidence
of a
single witness. The failure by the State to call such further
witness may in particular circumstances justify the inference
that,
in the prosecutor’s opinion, such evidence might possibly give
rise to contradictions which could reflect adversely
on the
credibility and reliability of the single State witness. See
S
v Teixeira
1980 (3) SA 755
(AD) at 764A – B.
[22]
The evidence of other witnesses that should be approached with
caution are accomplices. In
casu
Mandla was not an accomplice in respect of the murder charge, but
clearly part of a group of criminals on the verge of illegally
obtaining gold from the Saaiplaas plant to such an extent that they
clearly intended to either steal or rob. They were even
armed
with firearms to protect themselves. The cautionary rule was
comprehensively formulated in
R
v Ncanana
1948 (4) SA 399
(AD) at 405. See also
S
v Francis
1991
(1) SACR 198
(AD) at 205F. Caution in dealing with the version
of an accomplice is imperative. An accomplice may have a motive
to
lie about an innocent accused. Courts are generally looking
for corroboration which may even be found in the evidence of another
accomplice, provided the latter is a reliable witness, or some other
objective evidence or other assurance that the evidence of
the
accomplice is reliable. In the absence of corroboration or some
other assurance as to the reliability of the evidence,
the court
evaluating the evidence should appreciate the peculiar danger
inherent in the evidence of the accomplice. Acceptance
of the
accomplice’s version and rejection of the accused’s
version is only permissible if the merits of the accomplice
and the
demerits of the accused as witnesses are beyond question.
[23]
Bearing in mind the court
a
quo’s
evaluation of the evidence it is necessary to refer also to the
following case law. In
S
v Ipeling
1993 (2) SACR 185
(T) Mahomed J (as he then was) stated as follows at
189c – d:
“
It
is dangerous to convict an accused person on the basis that he cannot
advance any reasons why the State witnesses would falsely
implicate
him. The accused has no onus to provide any such explanation. The
true reason why a State witness seeks to give the testimony
he does
is often unknown to the accused and sometimes unknowable. Many
factors influence prosecution witnesses in insidious ways.
They often
seek to curry favour with their supervisors; they sometimes need to
placate and impress police officers, and on other
occasions they
nurse secret ambitions and grudges unknown to the accused. It is for
these reasons that the Courts have repeatedly
warned against the
danger of the approach which asks: 'Why should the State witnesses
have falsely implicated the accused?' ”
[24]
The above
dictum
by Mahomed J has been quoted with approval in
S v BM
2014 (2) SACR 23
(SCA) at para [25] and Wallis
JA, writing for a unanimous bench, found as follows at para [27]:
“
In
this case both the magistrate and the court below adopted an
incorrect approach to the consideration of the evidence. In
effect they held that the inability of Mr BM, to advance a plausible
reason for SM fabricating these allegations, meant that her
evidence
had to be accepted and his rejected. That was incorrect and
came close to placing an onus on Mr BM to prove his
innocence.
The proper approach was to evaluate both versions against the
inherent probabilities, taking account of all the
evidence. If,
after undertaking that exercise, it appeared that his version could
reasonably possibly be true, even if it
were improbable or in some
respects untruthful, he was entitled to be acquitted.”
V
EVALUATION
OF THE JUDGMENT OF THE COURT
A
QUO
[25]
In view of the authorities referred to the court
a
quo
should at least have asked itself the following questions:
1.
Is
there a substantial balance of inherent probabilities supporting the
version of the State.
2.
Are
the merits of the State’s case so clearly superior to the
demerits of the accused’s case as to justify a finding
of guilt
beyond reasonable doubt?
3.
Is
there an adequate explanation why Questa was not called to testify on
behalf of the State?
I
shall refer to these aspects again
infra.
[26]
I am in agreement with appellant’s legal representative that
the court
a quo
adopted a skewed approach in analysing the
evidence in that contradictions, inconsistencies and improbabilities
in the State’s
case were not criticised, whilst the same
generosity was not shown to the evidence of appellant. If I
apply the same reasoning
of the court
a quo,
I find it
extremely improbable that appellant, standing at the open sliding
door, would be able to shoot at and actually hit the
deceased in the
chest area in so far as the deceased was sitting in the third row of
the Quantum and bearing in mind the presence
of other occupants.
However, this is not the most important aspect of the evaluation to
be undertaken.
[27]
Appellant and Questa were the commanders and organisers of the
illegal operation. There is in my view just no logical
explanation why a heavily intoxicated commander would proceed with an
illegal operation as Mandla wanted the court
a
quo
to believe. Furthermore, there is also no logical explanation
as to why the operation was called off at such a late stage
of the
proceedings and why that would cause Questa and the appellant to
become involved in a heated argument. Even if it
was necessary
to call off the operation at a late stage, there was no reason for
appellant to instruct his cohorts to hand over
their firearms to
him. Surely, he could have informed them that due to
circumstances beyond their control it would be dangerous
to proceed
with the operation whilst the firearms could be collected once the
group arrived at appellant’s home. The
argument about the
magazine not being handed over to appellant is far-fetched and
improbable. I cannot think of any conceivable
reason why the
deceased would have kept the magazine of a firearm apparently
belonging to the appellant.
[28]
It is common cause that the cohorts have been involved in similar
operations previously and there was no reason to reject the
version
of appellant that he overheard an argument between Thabo and Mandla
on the one hand and the deceased on the other, the
deceased being
accused of cheating in not handing over money to which these two
people were entitled according to them. Appellant’s
version that he tried to calm them down, but notwithstanding that,
firearms were cocked whereupon first one shot and then later
a second
shot was fired, cannot be rejected as not reasonably possibly true.
[29]
The court
a quo
asked the following question which was the
wrong question to ask:
“
The
question now is why then does Mandla choose to incriminate the very
man who was trying to bring peace amongst them. This
also does
not make sense.”
Obviously
it was appellant’s version that he tried to restore peace and
not Mandla’s version. I referred to relevant
case law
above and wish to make it clear that the approach that accused
persons are necessarily guilty because complainants have
no apparent
motive to implicate them falsely and accused are unable to suggest
one, is fraught with danger. However, in
casu
,
there was a very important motive for Mandla to falsely implicate
appellant which was not considered at all by the court
a
quo
.
I wish to quote
verbatim
the following from the cross-examination of appellant:
“
The
same gentleman I asked you earlier about. Now the question is
if you were so close to Mandla why would he falsely implicate
you to
be the person who so brutally shot and murdered the deceased with six
bullets for that matter? …
Because he had already said lies?
because I am here.
Yes, but I am saying why would he lie
about you because you were getting along well with him? …
The reason why he did
that, it is because I said to him man, you
should know that if we bury this one you will be buried as well.
…
Why did you say that to him? …
Because I was not happy that he shot my friend.
…
Yes,
Questa had already informed me that he shot.”
[30]
It is evident that Mandla decided that attack would be the best form
of defence and that is why he indicated in his police
statement that
appellant was the culprit and he continued with this form of attack
during the trial. There was no reason
why Mandla would blame
any of the other cohorts as they apparently did not incriminate him,
but appellant did. The court
a
quo
indicated that
“
(T)here
are various reasons why other witnesses were not called for and one
of the reasons can be that there is some intimidation
or they do not
want to testify”
.
This is speculation and has never been properly explored. The
prosecutor (not the one that appeared during the first
appearances)
did not provide a convincing reason for not calling Questa.
There is no reason to doubt the version of appellant
that the
previous prosecutor was in telephonic conversation with Questa at a
previous occasion and in the absence of any evidence
led by the
investigating officer in this regard, the court
a
quo
could have found that the State had failed to call Questa as the
prosecutor knew that Questa was not prepared to corroborate the
version of Mandla. I refer in this regard to
Teixeira
supra
.
However it is not even necessary for us to go as far as the court in
Teixeira
and to insist that a negative deduction be made from the failure to
call Questa.
[31]
I am also of the view that, bearing in mind the totality of the
evidence, Mandla lied when he tried to indicate that it was
the first
time that he took part in such an illegal operation. I quote
verbatim
from his cross-examination:
“
You
still haven’t answered my question. My question was: It
was not the first time that you had been involved in this
kind of a
plan, yes or no will do? … No, it was the first time. It
never happened this way.”
[32]
The court
a
quo
indicated that it was evident from Mandla’s evidence that it
was not disputed that appellant demanded the firearms from the
people
in the Quantum when he decided to halt the operation. It is
correct that it was not specifically put to Mandla that
his version
in that regard was false, but again, the cross-examination must be
seen in its totality. The court
a
quo
clearly
misdirected itself in this regard. Not only did Mandla
contradict himself by indicating that the instruction was that
“
all
the people that were inside the Quantum … they must hand in
all those guns … all of them, even the Sotho speaking
people
they handed over their guns”
.
Later on Mandla testified that three of them were not in possession
of firearms, to wit he, Questa, the driver, and one
Sotho man.
Even if this contradiction is ignored, it is clear that the detailed
version of appellant put to Mandla is such
that Mandla’s
version pertaining to the demand to hand over firearms was seriously
attacked.
[33]
The court
a
quo
made an issue of the fact that, bearing in mind the number of people
in the Quantum, it would be impossible for somebody in the
co-driver’s seat such as appellant to see who cocked their
firearms if these people were sitting in the third row from the
front. There is nothing in the record to indicate whether the
people cocking the firearms were doing so at shoulder height,
or in
any other manner.
[34]
In considering the evidence and the reasons of the court
a
quo,
I am mindful of the fact that there were also certain improbabilities
in the version of appellant. For example, he testified
that he
was not in possession of a firearm and that only three people were in
possession of firearms, to wit the deceased, Mandla
and Thabo.
I got the distinct impression from this evidence that he tried to put
as much distance as possible between him
and any firearm in order to
disprove that he shot at the deceased as testified to by Mandla and
eventually killed him.
[35]
In the final analysis the court
a
quo
failed to ask itself the questions referred to above and if those
questions were asked and properly answered, it would have come
to the
conclusion that appellant ought to be acquitted. There were no
inherent probabilities supporting the version of Mandla.
The
fact that it was admitted that the deceased was killed and that it
was common cause that he was part of the group of cohorts
are neutral
factors and nothing more. Secondly when considering the merits
and the demerits of the two versions - the two
mutually destructive
and irreconcilable versions – it is evident that the court
a
quo
accepted the version of Mandla without any critical analysis thereof,
but considered the version of appellant with a magnifying
glass in
order to find improbabilities justifying the finding the court
a
quo
arrived at. It could not be said that the merits of the State’s
case was clearly superior to the demerits of the defence
case as to
justify a finding of guilty beyond reasonable doubt. Lastly,
the issue of corroboration and the failure to call
Questa were
improperly considered. The court
a
quo
did
not appreciate the danger of relying on the uncorroborated version of
Mandla as an accomplice and failed to treat his version
with the
caution that was expected in the circumstances, especially in so far
as it was even suggested, although half-heartedly,
that appellant had
an option to call the occupants as defence witnesses. However,
as indicated
supra
,
it is not even necessary to find that the court
a
quo
erred in not making a negative deduction against the State for the
failure to call Questa. The testimony of Mandla,
a single
witness whose version was not corroborated and whose evidence also
did not pass the test laid down in
Sauls
(evidence of a single witness) and
Francis
(evidence
of an accomplice) could not be relied upon for a conviction
in
casu.
Appellant’s
version was not so improbable that a finding could be made that it
was not reasonably possibly true.
VI
CONCLUSION
[36]
Having considered the judgment of the court
a
quo
and the arguments on behalf of the parties and again after evaluating
the evidence afresh, I conclude that the court
a
quo
erred in finding that the State had proven its case beyond reasonable
doubt.
VII
ORDER
[37]
The appeal succeeds and the conviction and sentence are set aside.
_____________
J.P.
DAFFUE, J
I concur.
_____________
GELA,
AJ
On
behalf of the appellant:
Ms Kruger
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondent:
Adv. M.
Strauss
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
/eb