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[2016] ZAGPPHC 131
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Tshabalala v S (A78/2012) [2016] ZAGPPHC 131 (11 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG DIVISION, PRETORIA
)
CASE
NO: A78/2012
DATE:
11/3/2016
Not
reportable
Not of
interest to other judges
Revised
IN THE MATTER BETWEEN
GODFREY
TSHABALALA APPELLANT
AND
THE
STATE RESPONDENT
JUDGMENT
PRINSLOO, J
[1] There was some delay in the preparation of this judgment, which
is regrettable. The matter was already heard on 27 February
2015, and supplementary heads were filed by counsel in late March or
early April 2015.
I need not dwell on the reasons for the delay, and although I was
alive to the fact that the appellant was already granted bail
pending
the finalisation of the appeal as long ago as on 12 June 2013, the
delay is nevertheless regretted.
Introduction and brief notes on the chronological history of
the case
[2] Procedurally speaking, this case has a long and tortuous
history. In the paragraphs that follow, I will attempt to
summarise
some of these details, although they do not, in every
respect, emerge clearly from the record.
[3] In the court below, the appellant, as accused, was charged with
four counts. Count one was one of murder (at the commencement
of the trial, the charge-sheet was amended by agreement, to introduce
a reference to section 51(1) of Act 105 of 1997 to make provision
for
imposition of the prescribed minimum sentence, in the event of a
conviction) and three counts of contravention of the provisions
of
the Firearms Control Act, Act 60 of 2000, namely the possession of an
unlicensed firearm, unlawful possession of ammunition
and the
pointing of a firearm.
Counts three and four, also erroneously, refer to 2 March 2004 as the
date when those offences were allegedly committed, although
it is
common cause that the date was 27 March 2004, a Saturday.
Also at the commencement of the trial, these incorrect
dates were
suitably adjusted by means of an amendment.
[4] The alleged offences were all committed on 27 March 2004, almost
twelve years ago, and count one reads as follows:
"In that upon or about 27 March 2004 and at or near Olifantshoek
in the district of Hlanganani the accused did unlawfully
and
intentionally kill Mphepu Lerisa Ngobeni, an adult female person."
[5] The trial commenced on 20 April 2009 when the appellant, who was
legally represented, pleaded not guilty to all the charges.
In
a detailed plea explanation, he denied any involvement in the
alleged offences and offered full particulars of an alibi
defence
which he would advance. I will return to the subject of the
alibi, but, broadly speaking, it amounts to this: on
27 March 2004,
the appellant was in Johannesburg, where he stayed at the time, and
worked as a security officer, and assisted his
then girl friend
to engage the services of a plumber known to the appellant, to do
some plumbing work at the girl friend's
home. He was busy with
this activity until the evening of 27 April, and slept in
Johannesburg, and again saw the plumber
the next day, 28 April.
The plumber gave evidence as a defence witness in support of the
accused (appellant). The appellant
offered a plausible
explanation for his inability to call the girl friend as well, as
their relationship had come to an end in
the meantime, for
understandable reasons, and he could not trace her.
[6] According to an entry on the index to volume 3 of the record, the
learned trial Judge, Makhafola, AJ, (as he then was)
gave
judgment on 5 June 2009, convicting the appellant on all four the
counts.
I could not find the date of the judgment in the record, and the
transcript of the judgment was signed by Van der Merwe DJP on
25 February 2011 on behalf of the learned trial Judge.
[7] The conviction was followed by a process of the obtaining of a
pre sentence report and also a victim impact report and
evidence
led in aggravation and mitigation of sentence.
I consider it appropriate to add that the appellant was a first
offender, a family man with two children and gainfully employed
at
all relevant times, barring, of course, the period when the appellant
was incarcerated following his arrest (later to be released
on bail
pending the trial) and the period when he was incarcerated after he
was sentenced until bail was granted, as I have pointed
out, on 12
June 2013, pending the finalisation of the appeal.
When the appellant gave evidence in mitigation, before he was
sentenced on 30 July 2010, he was already 36 years of age,
and gainfully employed earning a salary of some R10 000,00 per
month. When he gave evidence in mitigation, he insisted
that he
did not commit the offence and that he was framed by the state
witnesses, because of a family feud, to which I will refer
in greater
detail.
[8] On 30 July 2010, the appellant was sentenced to life imprisonment
in respect of the murder count, and to twenty months imprisonment
in
respect of counts two, three and four which were taken together for
purposes of sentencing. It was ordered that the sentences
in
respect of counts two, three and four would run concurrently with the
sentence on count one. This, in any event, would
follow
ex lege
.
[9] On 15 March 2011, Van der Merwe DJP (in the absence of the
learned trial Judge) granted leave to appeal in respect of
both the
convictions and the sentences. Leave was granted to the Full
Court of this Division. This is the appeal which
eventually
came before us.
In his judgment, the learned Deputy Judge-President confirmed that he
only had access to the judgments in respect of convictions
and
sentences and the notice of appeal, and some other documents but not
to the record. The learned Deputy Judge President
then
added:
"What I am prepared to say is that on the evidence as summarised
by the learned trial Judge there is a reasonable prospect
of success
that another court may find that the state failed to disprove the
alibi raised by the accused. It is clear
from the papers,
more in particular the judgment, that the alibi was raised at an
early stage."
[10] After leave was granted, almost five years ago, the appeal
travelled a somewhat complicated procedural road. The main
reason for this is that the evidence of the defence witnesses could
not be traced and transcribed. Already on 1 August
2012
a well known senior official in the Digital Court Recording
Section of the Justice Department, who was also a supervisor
in that
capacity, Ms Weber, deposed to an affidavit to the effect that she
does have access to the "BCB Server" which
was operated by
the previous transcribing contractor at the time. Ms Weber
was told that the audio could not be located.
"The
external hard drive that it was saved on crashed in June 2009 and it
is not possible to retrieve any data on the hard
drive, ... hence the
audio cannot be submitted for transcription of the three defence
witnesses in the court
a quo
".
It is not clear who the "three" defence witnesses are
because, in his judgment, the learned trial Judge only refers to
two
such defence witnesses. There are also some suggestions in the
record that the main, and single, witness on whose evidence
the state
case is based, Ms Mhloti Tiny Ngobeni, the daughter of the deceased,
was recalled to testify. That evidence, such
as it may have
been, does not appear from the record presented to us.
[11] Against this background, I gather from some of the older heads
of argument and memoranda from counsel in the file, that the
appeal
was on the roll on 29 May 2013, and then postponed to 5 February
2014 for purposes of reconstruction or transcription
of the missing
portions of the trial record. Counsel for the state also
prepared a memorandum dated 19 December 2013
referring to the
difficulties flowing from the flawed record. He deals with Ms
Weber's affidavit. He concludes by stating
that the defence
witnesses, Mr Carlton Mabade (the plumber) and Ms NwaPiet Makuma
were called and extensively cross-examined
by the state but their
evidence is missing from the court record. The state and
defence do not have their personal notes
and their recollection is
limited to the judgment by the trial court in so far as the evidence
of the two defence witnesses is
concerned. There was also an
indication that the learned trial Judge was prepared to meet with
counsel in an effort to discuss
the dilemma.
[12] There is a court order dated 5 January 2014 (perhaps erroneously
so in view of counsel's memorandum that it was postponed
from 29 May
2013 to 5 February 2014). Nevertheless, in terms of this
order the matter was postponed to 23 July
2014 and the
appellant's bail was also extended until that date. This would
have been the bail granted on 12 June 2013.
[13] According to another court order, the matter came before the
Full Court on 23 July 2014 when it was postponed to 10 November
2014 and the appellant's bail was again extended. The earlier,
29 May 2013, order is also available recording that the matter
was
postponed to 12 June 2013.
The 12 June 2013 order deals with the bail granted to the appellant
pending the outcome of the appeal and the bail conditions.
It
also orders a postponement of the appeal to 5 February 2014.
[14] There is also an order of 12 December 2014 reinstating the
appeal which evidently had lapsed at some stage and re-affirming
the
granting of bail pending the outcome of the appeal and restating the
bail conditions.
Paragraph
1 of this order of 12 December 2014 reads as follows:
"That reinstating his appeal to the Full Court under case number
A78/2012: the application for condonation to be heard
by the
Court of Appeal."
[15] When the appeal came before us, Mr Pistorius appeared for the
appellant and Ms Creighton appeared for the state.
Neither
counsel dealt with this issue of condonation which, I assume, has to
do with the lapsing of the appeal. I do not
have an independent
recollection as to whether or not we considered an application for
condonation, but it seems that we allowed
the matter to proceed
before us so that the condonation would have been granted.
Inasmuch as it may be necessary, I would
hereby grant such
condonation.
More notes about the reconstruction of the record
[16] As to the reconstruction of the record, the court file contains
a "final memorandum – reconstruction of court record",
dated 30 January 2014 and signed by counsel for the state,
Mr Davhana and counsel for the defence, Mr Malatji.
These counsel appeared in the trial, but not one of them appeared
before us in the appeal.
The memorandum was signed at Thohoyandou on 30 January 2014 by
these two counsel. It is convenient to quote the
contents
of the memorandum:
"
To: the Full Court Bench (North Gauteng High Court)
1. Adv Davhana for the state and Adv Malatji for the appellant
appeared before Honourable Makhafola J in chambers at Limpopo High
Court Thohoyandou.
2. Honourable Makhafola J, raised the following issue with counsel.
2.1 Whether the summary of evidence by various witnesses including
defence witnesses who testified during the trial of the appellant
and
appearing in his judgment are inaccurate and/or incorrect.
3. Both counsel in response agreed that summary of evidence by all
witnesses for the state and the defence in the judgment is accurate.
4. In the result it is submitted by both counsel for the appellant
and respondent that the appeal should proceed as scheduled relying
on
the judgment for the missing part of the record."
[17] As will appear from this judgment, I find myself in respectful
disagreement with both the summary of the evidence as it is
contained
in the judgment as well as the evaluation thereof.
[18] In my respectful view, it cannot be that a Court of Appeal on
fact, particularly one like the present where there are deep
rooted
differences between the two sides and where mutually destructive
versions are offered, can be bound by an "agreement"
signed
by the two trial counsel more than a year before the appeal was heard
when the counsel did not even take part in the appeal.
Moreover, it appears from the memorandum that the appellant was
absent from these proceedings where the "agreement" was
reached.
[19] For purposes of the hearing before us, neither counsel filed his
or her own heads of argument: Mr Pistorius offered heads
of argument
presented by a predecessor in May 2013, and Ms Creighton
relied on very concise heads, prepared by Mr Davhana
in July
2014. It is only after some debate with us, that both counsel
presented additional heads of argument after the hearing
as I have
indicated.
[20] Mr Pistorius attached a "practice note" to the first
heads of his predecessor. The practice note contains
the
following paragraph:
"5. The parties concur that all prescribed steps have been taken
to reconstruct the outstanding parts of the record and that
the
appeal can be adjudicated on the record as filed. The parties
concurred that the judgment of the Presiding Judge (Makhafola
AJ) (
my
note
: of course, it had since become Makhafola J) addresses
sufficiently the evidence of the outstanding evidence (
sic
?)
of the record and is satisfied that the appeal record has been
properly reconstructed as required (see attached memo regarding
construction process filed on 19 December 2013)."
No memorandum is attached, let alone a memorandum of 19 December
2013. The memorandum referred to can only be that of 30
January
2014, which I have dealt with.
In his practice note, counsel does not appear to go so far as to
agree, as was done by the other counsel in the 30 January 2014
memorandum, that "summary of evidence by
all witnesses
for the state and the defence in the judgment is accurate"
(emphasis added). Indeed, I find counsel's practice
note
rather cryptic. It is not clear what he means by "addresses
sufficiently the evidence" let alone "the
evidence of the
outstanding evidence". It seems, however, that he limits
his note to the summary of the evidence of
the defence witnesses
which, of course, is not available for consideration, neither was it
available to the learned trial Judge,
although, of course, he would
have been able to rely on his notes.
[21] In the main, this is a so-called "facts appeal".
It is trite that the power of the Court of Appeal to interfere
with
the factual findings of the trial court is limited to instances where
the trial court misdirected itself – see, for
example,
R v
Dhlumayo
1948 2 SA 677
(A) and
S v Francis
1991(1) SACR
198 (A) at 198j-199a.
[22] I consider, against this background, that it would not be an
overstatement to point out that to bind a Court of Appeal in
a "facts
appeal" to an "agreement" to the effect that the
summary of the evidence of all the witnesses (including
the crucial
defence witnesses whose evidence was not even transcribed) who
testified during the trial is accurate would be to curtail
the
already limited powers of the Court of Appeal and to virtually close
the door to the appellant to launch a successful "facts
appeal". The same applies to the "agreement"
providing "that the appeal should proceed as scheduled relying
on the judgment for the missing part of the record".
[23] These issues were not dealt with by counsel in their original
(outdated) heads of argument nor in their later heads which
were
received after the hearing.
[24] I consider all this to be an unfortunate state of affairs, but,
where the hearing was allowed to continue, I will attempt
to deal
with the appeal in the appropriate manner, and by paying due regard
to the test as laid down in
Dhlumayo
and
Francis
and
many other decisions, but on the basis that this Court of Appeal is
not bound by the "agreement" of 30 January 2014.
A brief overview of the evidence
[25] I will attempt to limit this overview to aspects of the evidence
which appear to me to be of relevance for purposes of coming
to the
right conclusion.
(i)
Khazamula Wilson Mathebula ("Mathebula")
[26] He visited the scene of the crime with some other police
officers. He does not mention the time but the next witness
said the incident occurred at about 19:00 on 27 March 2004.
He was an inspector in the police.
[27] He checked for clues but found nothing "as already the sun
has set".
[28] At the scene he found the body of the elderly lady, her husband
Mr Ngobeni and her daughter Tiny Ngobeni. Tiny, in broad
outlines, told him what happened. She was seated outside with
her mother when the stranger arrived, was offered a seat, said
he
came to bring money and then shot the mother and walked away.
When asked why he did not follow up information obtained
from Tiny or
her father, he said "I only visited the scene of crime as I
was not the investigating officer of this case".
[29] He asked Tiny who the perpetrator was and Tiny did not give him
the names of the person but "what she said was that if
that
person can be arrested, she will be in a position to identify the
person".
[30] Tiny told the witness that she saw the perpetrator for the first
time on the day of the incident.
I pause here to mention an argument raised fleetingly in heads of
argument although not presented before us with some force or
dealt
with in the judgment. It is this: the appellant testified,
in my view in compelling fashion, that Tiny knew him
before the
incident and because of the family feud between the appellant's
family and Tiny's family, to which I will refer in greater
detail,
she pointed him out at the identification parade. Tiny denied
that she knew the appellant beforehand. The argument
is that if
Tiny knew him, it would have been easy for her to give his name and
other particulars to the police witness or other
people. Of
course, the counter-argument is that if she knew the appellant which,
on the weight of the evidence, I consider
to be the most probable
state of affairs, but did not disclose his identity to the police
witness, it is probable that the perpetrator
was not the appellant!
[31] Mathebula did not take the matter much further. He did not
speak to the father, who was still in the house when the
incident
occurred. Tiny told him that the suspect spent 15 minutes
at the home of the deceased. Tiny told him
that the suspect
said that he had been sent by one Knox to bring the money to them.
It is common cause that Knox Ngobeni
is the brother of Tiny and the
son of the deceased.
[32] Knox did not give evidence. The state did not present any
evidence about a possible link between the appellant and Knox
and no
reason was advanced for the failure to call Knox as a witness. I
consider this to be a
lacuna
in the state's case.
[33] In cross-examination, Mathebula was asked if Tiny gave him a
description of the suspect and he said the following:
"Tiny told me that the suspect ... the suspect was a short
person and again physically small and since it was during the night,
she could not see the other things and the suspect's body."
Importantly, this is not quite what Tiny said when she gave evidence
under cross-examination. She was asked what description
she
gave of the suspect to the police on 27 March 2004 (on the
probabilities to Mathebula). She answered:
"I told the police officer that if I can see the suspect I will
be able to identify him, and I told the police officers that
I did
not know the suspect's name since he did not give us his names, and
again I was able to see how the suspect was clad on that
day.
And what else? --- That was it.
You just told the police to say, look, this person, if he can be
brought, I will identify him. --- Yes I did tell that to the police.
And secondly, that you were able to see or to see the way he was
clad. --- Yes.
And that was all. --- Yes."
Later in her evidence under cross-examination, she became
considerably bolder and embroided on her own version as follows:
"And do you know where the description that you provided to the
police, how the police went to Johannesburg to arrest this
accused
person? --- I only gave the accused's description to the police
officer, his features, how he was clad, his facial features,
how he
was clad, so as to how did the police officers went to Johannesburg
and got to arrest the accused, that is unknown to me."
This, of course, is in contradiction to what she told Mathebula and
what she, herself, had said earlier.
As I will attempt to illustrate later, from a reading of the record,
I was left with the impression that Tiny's evidence was
unsatisfactory,
and probably dishonest, in a number of respects.
As to her statement to Mathebula that the appellant was short in
stature, I find it appropriate, at this time, to add that, judging
by
a photograph, exhibit "H2", of the eleven participants in
the identification parade, the appellant appears to be the
shortest,
barring one, of the participants. An exception is what appears
to be an individual hidden behind two taller participants
on the left
of the picture. I will revert to the issue of the
identification parade later, because it formed the main subject
of
the supplementary heads of argument presented to us.
[34] In cross-examination, Mathebula was also confronted with the
fact that the appellant is related to Tiny's family by marriage.
Perhaps understandably, Mathebula denied any knowledge of these
family relationships.
[35] In cross-examination of Mathebula, counsel for the appellant
also raised the point which I mentioned earlier, namely the possible
reaction of Tiny in her communications to the police had she known
the perpetrator. The question was put as follows:
"Right, then my instructions are that Tiny knows the accused
person by virtue of this relationship, and if this accused person
is
involved in this particular case, Tiny would have informed you that
the deceased was shot by the accused before this court ..."
Mathebula, again perhaps understandably, simply said that he did not
know details of the family ties mentioned.
[36] None of the points of criticism of Tiny's evidence, which I
raised when dealing with Mathebula's evidence, was mentioned in
the
judgment of the court
a quo
.
(ii)
Mhloti Tiny Ngobeni ("Tiny")
[37] I have dealt with some of her evidence, and will attempt to
avoid unnecessary repetition.
[38] She was seated in the lapa inside their yard with her mother at
about 19:00 on 27 March 2004 when the incident occurred.
[39] There was an electric light stuck on the outside wall which lit
up the lapa area.
[40] She saw the stranger entering through the gate and approaching
them. The late mother told her to fetch a chair for the
visitor
which she did.
[41] Although her description of where the visitor finally sat down
is a bit cryptic, it seems that, according to her, the single
light
bulb was coming from behind her and her mother "reflecting on
our backs" so that the stranger would have faced
the light if he
sat opposite them. The two of them were sitting on the ground,
on reed mats, so that the stranger was sitting
higher than what they
were.
[42] In chief, and quite uninvited, she kept on saying that she was
constantly looking at the stranger's face, also when she brought
him
the chair and put it down for him. "Whilst I was busy
giving the bench to the unknown person, I was putting it down,
I was
still looking at him."
This
even prompted counsel for the state to ask her -
"Why did you do that? --- The reason why I did that was that the
person was unknown to me, so I wanted to see him."
This, I consider to be inherently improbable. It is more
likely, in my view, that the witness was well rehearsed on the
importance of the question of identity, especially if it was offered
by a single witness. I am not suggesting any impropriety
on the
part of the state counsel. My impression of Tiny's evidence is
that she is intelligent and "streetwise"
if I may use that
expression without being derogatory. She was already 20 years
old at the time of the incident, having
been born in 1984, according
to her evidence. She gave this meticulous evidence five years
after the event, in April 2009.
[43] Tiny confirmed the evidence of Mathebula that the stranger told
them that he had been sent by her brother Knox to bring some
money.
She also said emphatically on two occasions that Knox was in
Rustenburg and not Johannesburg.
Because it is common cause that the appellant was based in
Johannesburg at the time, it again begs the question why Knox was not
called to testify and, also, how Knox from Rustenburg would have
linked up with the appellant in Johannesburg. These issues
were
also not raised in the cross-examination of the appellant.
[44] She initially said that she did not see the stranger producing a
firearm - "At that stage the strange person was searching
himself, and I did not see the object that he produced, but after
that I heard a sound ... I heard a sound and my father (
sic
)
was shot at three times."
This may have something to do with the visibility at the time, but
later, in response to a leading question, she said that she
did see
the attacker producing the firearm.
[45] When the stranger started walking away after the attack she
screamed and followed him. He turned around and pointed
a gun
at her. This is where the conviction on count four originates
from.
She went to the home of her brother Edward Ngobeni and told him what
the stranger looked like. Edward did not see the stranger.
Edward did not give evidence.
[46] Late in her evidence in chief, and in answer to a question from
counsel, she said that the stranger was wearing a cap -
"The
cap did not cover the face but it was covering his head only."
[47] In her evidence in chief, Tiny said very little about the
identification parade, except that it was easy for her to identify
the perpetrator. I will revert to the subject.
[48] In cross-examination, she gave evidence about the description
she gave to the police. I have fully dealt with this
issue.
[49] I proceed to briefly deal with certain subjects canvassed in
Tiny's cross-examination.
•
Evidence about the identification parade.
[50] She was "told at the door" what to expect at the
identification parade. She had not attended such a parade
before.
[51] She was not told that the appellant "this accused person",
was amongst the people at the parade, but it is clear,
from a general
reading of her evidence, that "what I was told was that I had to
point out at a person", and "but
I was only told that I had
to go and point out the person that I alleged that I can identify".
[52] What is clear, is that she was not explicitly told that the
suspect she had in mind may not be present at the identification
parade.
[53] She passed grade 10 and "I do know time". She
does not think she spent more than ten minutes during her efforts
to
identify the appellant.
I mention this, because in the identification parade form, exhibit
"H1", it is stated in paragraph 25(1), that the time
taken
by the witness to point out the person on parade was forty minutes.
At the commencement of the proceedings, counsel
for the appellant
pointed out that this issue was in dispute and, according to the
appellant, it did not take more than two minutes.
It is of some importance to point out, as will appear later, that the
"member in charge of the parade", Captain T A Bvukeya,
did
not give evidence.
In fairness, it must, however, be recorded, that, on the list of
section 220 admissions, handed in at the beginning of the trial,
there was, added to the typed list of items the correctness of which
was not in dispute, a hand written item:
"8. Identification parade forms and photo album, photos 1 to 2
for identification parade, exhibit 'H1' and 'H2' respectively."
[54] When she was asked
"Why did it cause you to take a long time looking at the
suspect? Did he look suspicious or otherwise? --- The reason
was that I did not know the person, so I wanted to know him.
Yes, but did he appear to be very strange to you or what was the
position? --- Yes the person was unknown to me."
[55] Against this background, it is difficult to overlook the fact
that Tiny said, at a late stage in her evidence in chief, that
the
suspect who killed her mother had been wearing a cap and that Tiny
told Inspector Mathebula "the suspect was a short person
and
again physically small and since it was during the night, she could
not see the other things and the suspect's body".
[56] As will appear from the next subject which I will deal with,
namely the family feud, there was strong evidence, although disputed
by Tiny, that she knew the appellant, and prior to his arrest,
there were rumours circulated in Tiny's family that the appellant
had
been hired by members of his own family to kill the deceased.
There is also strong evidence that the family briefed the
investigating officer on where to look for the appellant in
Johannesburg for purposes of arresting him.
In short, I am of the respectful view that in this criminal trial, it
ought to have been difficult for the learned Judge simply
to overlook
the reasonable possibility that the appellant was identified at the
identification parade by Tiny who knew him and
who was involved in
the family feud, and not on the strength of observations she made
during the incident itself.
•
Brief remarks about Tiny's evidence in cross-examination
about the family feud.
[57] I consider it convenient, and necessary, to quote fairly lengthy
extracts from this cross-examination on this particular issue.
I do so, because I consider this subject to be of crucial importance
and the central issue of the case. In my respectful
view, the
undisputed existence of this family feud coupled with the undisputed
and detailed alibi evidence should, at the very
least, have sown the
seeds of reasonable doubt in the mind of the learned Judge.
Instead, the learned Judge paid very little, if any, attention to
these issues in his judgment and did not accord it the weight
that he
should have, in my respectful view, on a total conspectus of the
evidence. I consider this to be a material misdirection
on the
part of the learned Judge, of the kind contemplated in cases such as
Dhlumayo
and
Francis
,
supra
, and the type of
misdirection which justifies this Court of Appeal to interfere with
his findings of fact.
[58] I now turn to quoting extracts from Tiny's evidence on this
subject, cumbersome as such a procedure may be.
"Now, Ms Ngobeni, my instructions are that this accused person
and your family, including yourself, are known to each other.
What is your response?
--- I do not know of the suspect's family.
Thank you M'Lord. Do you know one deceased person, Mashango
Grace Ngobeni? --- Yes I know her.
Do you know that Ms Mashango Grace Ngobeni passed away during
December 2003? --- Yes that I know.
My instructions are that Mashango Grace Ngobeni was the daughter to
Ms Lengwhisa Makamu, who is also called Mwabethi? ---
Yes that I
know. (
My note
: it seems that Mwabethi, which is the
name commonly used during the trial, is the same person as NwaPiet
Makuma, who was one of
the defence witnesses, related to the
appellant and whose evidence was dealt with in the judgment, under
the circumstances which
I described when dealing with the "agreement"
of 30 January 2014.)
My instructions are that the late Grace Ngobeni was married to the
Famanda family, and you are a member of the Famanda family,
including
your late mother? --- Yes, the Famanda's are my family.
My instructions are that this accused person, he is the brother to
the late Mashango Grace Ngobeni, in that the mother to the late
Mashango Grace Ngobeni is the '(speaks in African language)', the
aunt to this accused person?
--- That I do not know. (
My note
: as will be observed, a
feature of Tiny's evidence, which I consider to be unconvincing and
disturbing, is that she readily makes
admissions, until the issue
gets closer to the bone and the shoe starts pinching, when she offers
bare denials. My reasons
for criticising Tiny's evidence, and
for considering it, in certain respects, to be probably less than
honest, are these: at the
time of the incident, she was approximately
20 years old. She is quite intelligent, with grade 10
qualifications and,
by then, she was probably a senior member of her
family, living in a close knit rural society with the rest of the
family.
There is no indication that she was living or working
elsewhere. Consequently, it is, in my view, inherently
improbable that
she would only have known some aspects of the family
feud but not the more important ones, as will appear from her
evidence.)
On or about 20 December 2003, it was the day that Grace Mashango
Ngobeni was brought for purposes of conducting a funeral, her
body
was brought at home, for purposes of conducting a funeral? --- Yes.
And the mother to Grace, Mwabethi, quarrelled during the funeral and
refused that people should even look at her body? --- At that
stage I
had not yet arrived at the said homestead, but I arrived after the
body of the deceased was brought home.
But my instructions are that you, yourself, you heard when Ms
Mwabethi Ngobeni was shouting that her daughter could not die alone?
--- I did not hear that, one meaning that when it was said I had not
yet arrived. (
My note
: another example of her evasive
evidence. At the very least, the overwhelming probabilities
would dictate that she would
have heard about this when she arrived
at the funeral).
My instructions are that you even told the police that you heard
Mwabethi shouting that her daughter will not die alone? --- I
do not
know that, and the police officers were not told by me.
Alright, my other instructions are that you also heard Mwabethi
shouting that all '(speaks in African language)' the ..., M'Lord,
I
am trying to get an English word for ('speaks in African language)',
people that are married in a certain kraal. (
My note
:
here follows an exchange between the court and counsel, from which it
emerged that the 'all' referred to were the daughters-in-law.)
Yes. My other instructions are that you also heard that the
daughters-in-law, or the '(speaks in African language)' from
the
Famanda family will die one by one before six months? --- That I do
not know and I did not say that. They were not told
by me.
Do you deny that, Ms Ngobeni? --- Yes, I do. (
My note
:
In my view, another prime example of the evasive nature of Tiny's
evidence and her refusal to admit something which, on the
overwhelming
probabilities given the particular circumstances, would
have come to her notice. The alleged sensational outburst by
Mwabethi
was never disputed.)
Alright. And that you also informed the police that when
Mwabethi was referring to the Famanda's family, she was referring
to
your family, I mean, when Mwabethi was referring to the
daughters-in-law in Famanda's family, she was referring to your
mother
as well and other ladies or wives that were married by the
brothers to your father? --- That I do not know, and I did not hear
it when it was said. (
My note
: the evasiveness, and
apparent dishonesty, and the inherent improbability that Tiny would
have known about all this, is, in my
view, quite obvious.)
And then the funeral at home of your mother, my instructions are that
it occurred on or about 5 April 2004? --- My mother was shot
at on
27 March, a Saturday, so the following Saturday she was
buried.
Or may be to put it this way, the Monday after the funeral, you are
correct, I am the person that did not put it correctly,
my
instructions are that the Monday after the funeral it was on about 5
April, you informed the police that Mwabethi had sent a
child to your
house to find out if members of the Famanda family had already
gathered as she also had a complaint? --- I did
not tell them,
but I was surprised when Mwabethi and the police vans arrived at our
place whilst I was busy packing the utensils.
My instructions are that you informed the police that she sent a
child to call your father's brother's wife? --- That I do not
know
and they did not hear this from me.
And that your father's brother's wife refused when Mwabethi wanted
her to come? --- That I do not know.
And you informed the police that Mwabethi came to you, the homestead
where the Famanda's family had gathered and complained that
Mwabethi
had hired a person to kill your mother? --- (Interpreter speaks to
witness.)
No, the people at Olifantshoek were complaining that Mwabethi hired a
person to kill her mother. --- I did not hear the things
that were
said by other people, so that I do not know."
(
My note
: in my view, this is another clear example of
dishonesty or, at the very least, unacceptable evasiveness on the
part of Tiny.
It should be borne in mind that details put to
her about the family feud, and Mwabethi's outbursts, and rumours that
she had hired
someone to kill Tiny's mother, were never disputed
during the trial. At this point, there was an interruption
of the
evidence of Tiny on this particular subject and I will
revert to it at a later stage. At this point, however, it is
convenient to add that in the learned Judge's summary of Mwabethi's
evidence, which, as I have illustrated, was not transcribed,
the
learned Judge also alludes to the fact that Mwabethi complained about
allegations that she had hired someone to do the killing.)
•
Tiny's evidence in cross-examination about the appellant's
alibi evidence.
[59] I again go through the cumbersome process of quoting from the
record what was put to Tiny in cross-examination about the
appellant's alibi evidence. As it was put, it represents, in
broad terms, the alibi evidence of the appellant which he confirmed
when he gave evidence and which, as far as I can gather from the
learned Judge's summary of the evidence of the plumber Carlton
Mabade, was also confirmed in the same terms by Carlton when he gave
evidence, which, as I have said, was not transcribed.
[60] Moreover, what also emerges from this evidence, as well as the
evidence of the next and last state witness, is that, on the
weight
of the evidence, as I read it in totality, Tiny's family, when
alleging that Mwabethi hired someone to shoot Tiny's mother,
harboured the theory that the hit man would have been the appellant,
a relative of Mwabethi, and, as a security officer, probably
in
possession of a firearm. It is clear from the weight of the
evidence that Tiny and her family briefed the police in this
regard
and also gave them a lead on how to arrest the appellant in
Johannesburg.
[61] I now proceed to quote the relevant extracts from Tiny's
evidence.
[62]
"Now do you know how this accused person, how did the police
arrest this accused person? --- I do not know.
And do you know with the description that you provided to the police,
how the police went to Johannesburg to arrest this accused
person?
--- I only gave the accused's description to the police
officer, his features, how he was clad, his facial
features, how he
was clad, so as to how did the police officers went to Johannesburg
and got to arrest the accused, that is unknown
to me. (I have
dealt with this issue in some detail, pointing out that Tiny's
earlier evidence, both to Mathebula and
in her evidence in chief, was
far less detailed when it came to her ability to provide a
description of the appellant. I
will not embark on unnecessary
repetition. The weight of the evidence suggests, as I have
said, that Tiny and her family
fingered the appellant as the hit man
and assisted the police to find him and arrest him in Johannesburg.)
My instructions are that this accused person, or he will testify if
necessary, that he is only a victim of circumstances in this
case?
--- I saw him, I know him.
My instructions are that on 27 March 2004, this accused person was
not at Olifantshoek, he was in Johannesburg? --- In the evening
I saw
him.
My instructions are that on 27 March 2004, this accused person
knocked off from work in the morning and went to his flat at Hillbrow
where he slept for a while? --- I saw him.
My instructions are that he woke up in the afternoon and requested
his friend, a plumber, one Mr Carlton Mabade, to go with him
to
Rosettenville or Kenilworth, to go and give a quote on a drain which
had blocked at his girl friend's house? --- I saw him in
that
evening.
My instructions are that that afternoon accused person went with this
Carlton and the quotation was done and a job was completed
on 28
March 2004? --- I saw him.
My instructions are that at no time between 27 March 2004 to 28 March
2004, that the accused left his girl friend, Maria Kemmone
Khutswane's premises? --- I saw him.
My instructions are that the suspicion that the accused has of him
being implicated in this matter, is to the effect that because
he is
a security guard in Johannesburg, and that he is a relative to
Mwabethi, then it is assumed that he might be having a firearm
and
therefore could be the best person to be hired to commit this
offence? --- [Interpreter speaks to witness.]
The fact that he is a security, it is suspected that he is having a
firearm, but he does not have a firearm. --- That I do not
know, but
what I know is that I saw him.
My instructions are that the accused does not possess a firearm, and
on 27 March 2004, he was not a person who was in possession
of
an unlawful firearm at Olifantshoek? --- I saw him. I saw him
and that what you have just said to me, it is unknown to
me.
My instructions are that on 27 March 2004, accused person is not a
person who is suspected to have been in possession of ammunition
at
Olifantshoek? --- I saw him.
My other instructions are that this accused person denies that he was
at your premises or at your parental homestead on 27 March
2004? ---
I saw him very well. (I take the liberty to revisit my earlier
remarks about Tiny's apparent disability to describe
to the police in
any detail what the appellant looked like. She could only tell
Mathebula that it was a short person ...
'and since it was during the
night, she could not see the other things and the suspect's body'.
It was dark, and the
suspect wore a cap, covering his head but
not his face.)
And my instructions are that he is not the person who is alleged to
have pointed you with the firearm as of 27 March 2004 at
Olifantshoek?
--- It is him who pointed me with the firearm.
And my instructions are that this accused person denies that he is a
person that committed this crime of murder on 27 March 2004
at
Olifantshoek? --- It is him."
[63] At this point the cross-examiner moved on to a different
subject, involving statements made by Tiny to the police. There
are some discrepancies between those statements and their evidence,
which I do not consider necessary to dwell on. There
is also
some evidence which, in my view, fortifies the conclusion, fully
dealt with earlier, that she could not properly identify
the
perpetrator. For example, in one of the statements she says
"the suspect was wearing a short trouser with a blue
colour on
the chest". It was readily conceded that this evidence
makes no sense. Excuses were offered that her
testimony to the
police, in Shangaan, was wrongly translated into English.
It also emerges from one of the statements that she may have told the
police that the suspect was staying at her brother's place.
This she denied, adding further to the confusion.
The cross-examiner also wanted to put the contents of a witness
statement, in the possession of the police, to Tiny, but was not
allowed to do so, for reasons, which, with respect, I have difficulty
in following. The cross-examiner said the following
about this
statement:
"
MR MALATJI
: For the witness to confirm. Now
the state is scared that the contents of this statement, because it
was divulged in
advance or part of the contents was divulged in
advance, if the original statement is that it is exposed to the court
and to the
witness, is going to contradict this witness, that in
other words, this witness' testimony under cross-examination will be
contradicted
directly by the statement that she made to the police,
and this is what the state is scared and afraid of, and it is aware
that
this witness was not telling the court the truth or her version
is not consistent with the statement which she made to the police."
I take this issue no further.
[64] Ultimately, the cross-examiner returned to an issue, which I
have touched on before, and which, as I have indicated, I consider
to
be of crucial importance for purposes of deciding this case. It
is a central issue which has a direct bearing on the alleged
identification of the perpetrator, his subsequent arrest, the
identification parade, the evidence of Mwabethi or NwaPiet and the
evidence of the appellant. I have indicated that this evidence
was, with respect, largely ignored by the learned Judge in
his
evaluation during the course of his judgment, which I have already
expressed to be a material misdirection in the spirit of
the test
laid down in cases like
Dhlumayo
and
Francis
.
[65] It is necessary, although cumbersome, to deal with this evidence
yet again:
"
MR MALATJI
: My instructions are that it is
not true that you do not know the accused person? --- I said that I
did see the person,
but I do not know his names.
Yes, my instructions are that this accused person is your family by
virtue of marriage or by affiliation through marriage of her
sister
to your ... to the Famanda's family? --- My aunt, her surname is
Makamu, and she is being married to the Ngobeni's, so I
know of the
family relations existing between the Ngobeni's and the Makamu's.
My instructions are that this accused person was present even at the
funeral of the late Grace Famanda, or the late Grace Makamu
(
sic
),
as you put it? --- I was crying and I was in pain, so I did not
see the accused or any other people there. (
My note
:
this is another example, in my view, of the evasive nature of the
evidence of this witness. She was clearly an intelligent
person, and streetwise as I have said and an alert 20 year old at the
time of the funeral and, probably, a senior member of that
family in
a closely knit environment.)
You did not see him because of grief or do you deny that he was
present? --- I do not deny the fact that the accused person
was
present at the funeral, but personally I did not see him.
Yes the question was, you did not see the accused because of grief or
do you deny that this accused person was at the funeral of
the late
Grace Mashango?
--- I said that I did not see him.
But can you deny that he was present? --- I do not know as to whether
the accused person was there at the funeral or not.
Alright, my instructions are that he was present as a member of the
family? --- I cannot deny that, as you are saying that
he is
family, he is a relative."
[66] And then later, after the cross-examiner failed to persuade the
learned Judge to conduct some cross-examination on the statements,
the following exchanges took place in further cross-examination:
"My other instructions, Ms Ngobeni, are that Mr ... the accused
before court, at the funeral of his sister, he was even the
one who
was reading the ... [indistinct] at the graveyard? --- I did not see
that. (
My note
: the reference to what the appellant was
reading was later clarified to mean 'the wreaths'. Again, I
consider the denial
of Tiny to be verging on the nonsensical, and
totally improbable.)
Yes, my instructions are that this accused person was even reading
the [indistinct] at the graveyard? --- At the graveyard I did
not see
people as I was seated down crying in grief.
My other instructions are that it is not true that you do not know
this accused person, because at Olifantshoek where he was staying,
the accused person is not staying. ... His homestead is
not far from where ... from your homestead? --- I only know
the place
where Malangwana's people used to stay, it is an old place, ... so I
am not aware as to whether the accused person was
related to those
people.
And my instructions are that you knew the accused before he left for
Gauteng in 1990, he actually left for Gauteng in 1990. ---
That I do
not know as I was born in 1984. (
My note
: this is a
point which the learned Judge considered to be of some importance
when he found that Tiny did not know the appellant
before the
shooting incident and when he found that Tiny's evidence as a single
witness was completely satisfactory and to be preferred
ahead of the
version of the appellant and the plumber and NwaPiet which he
rejected as not being reasonably possibly true.
I consider this
approach, with respect, to be a misdirection.)
Yes, my other instruction is that this accused comes and visits homes
whenever there are funerals and he is a known person there?
--- That
I do not know. (
My note
: in my view, this is completely
unlikely given the close nature of the family environments in the
area and the obvious involvement
of Tiny in the affairs of the
families.)
Lastly, the suspicion that the accused has why perhaps he was
arrested, it could be as a result of the fact that the police officer
called Leonard Maluleke, a next door neighbour to your house,
and perhaps he might be the one ... or his arrest could be as
a
result of the influence between Leonard and your family, that is why
he was arrested, Leonard Maluleke, not Leonard Khoza? ---
I have
never had a conversation with Leonard Maluleke.
And the suspicion that the accused has also is that this Leonard
Maluleke, probably after his discussion with your family, he is
the
one that came to show the police, this other police officer, Leonard
Khoza and Joseph Shilubane, his place of employment in
Johannesburg?
--- That I do not know.
Yes my other instructions are that it is ... it could be so because
this Leonard Maluleke is probably the only person between Leonard
Khoza and Joseph Shilubane who knew where the accused was employed
and where he was staying in Johannesburg? --- That I do not
know and
I was not there. (
My note
: only in the
cross-examination of the investigating officer Inspector Leonard
Khoza who arrested the appellant, did it emerge that
Leonard Maluleke
accompanied him and the other police officer to Johannesburg when the
arrest was effected.)
Lastly, this accused instructs that you were aware that the Famanda's
family and Mwabethi's family, which is accused's family,
are not in
good terms since the death of Grace? --- That I do not know. I
do not know as to that these two families are not
in good terms, the
Famanda's and the Mwabethi's family."
(Again, and for reasons repeatedly mentioned, this is totally
unlikely and, probably, quite untruthful. At the very least, this
version of the defence, if not highly probable on the totality of the
evidence, which I find to be the case, should have been adjudged
by
the learned trial Judge to be reasonably possibly true, and an issue
which should have alerted him to be more cautious about
unreservedly
accepting Tiny's evidence. I have expressed the respectful
view that the learned Judge's apparent total
ignorance of this issue
is a misdirection which is material in nature and which allows this
Court of Appeal to intervene.)
(iii)
Gezani Leonard Khoza
[67] He was the investigating officer. He never went to the
scene of the crime and was only appointed as investigating officer
two days after the event.
[68] He appointed "an informer" who came up with
information that the perpetrator was one Godfrey.
[69] He went to Johannesburg on the strength of the information and
finally arrested the appellant at his place of employment,
Magnum
Security Company.
[70] Understandably, he was not prepared to identify the informer.
[71] He said that he was not related to Tiny and her family but got
to know them after this incident.
[72] In cross-examination he said that the informer was not an
eye-witness "but he was just suspicious". He then
offered the hearsay evidence that the informer saw the accused
(appellant) at about 12:00 on 27 March at Olifantshoek. This
hearsay evidence was not pursued or analysed any further during the
hearing.
[73] Then, for the first time in cross-examination, the witness was
asked whether he went to Johannesburg with Leonard Maluleke
(and the
other police officer Joseph Shilubane) which he admitted to be the
case.
[74] Then came the following exchange:
"Right do you know if Leonard Maluleke knows the accused person?
--- It can be possible that Leonard Maluleke knows the accused.
Is it Leonard Maluleke that showed you the accused's flat? --- No we
were all looking around for the accused's flat, asking around.
(
My note
: on the overwhelming probabilities, this evidence is
false: in compelling fashion, the appellant testified that after his
arrest,
he was informed that the family of the deceased (which would
include Tiny) had a meeting from which an allegation emerged that his
aunt (obviously Mwabethi or NwaPiet, which must be the same person)
gave him R10 000,00 to kill the deceased. He testified
emphatically (and this remained undisputed) that he knew Leonard
Maluleke for many years also as a neighbour where they used to
live
at Olifantsfontein and later they were also at Pretoria where they
worked and were neighbours. Maluleke visited him
at his flat in
Johannesburg and knew exactly where it was and Maluleke, according to
his information, was present at the aforementioned
family meeting.
Although this evidence, to an extent, amounted as hearsay, it was not
objected to or disputed and, to an
extent, corroborated by Mwabethi
if I understand the learned Judge's brief summary of the latter's
evidence correctly.)
[75] His evidence about Tiny's description of the suspect is the same
as that of Mathebula:
"Tiny did give me the description of the suspect, she said that
the suspect is short and that if she can see the suspect again,
she
will be able to identify him."
[76] A statement by Tiny dated 27 March 2004 reflecting him as the
Commissioner of Oaths, is incorrect. He only took over
later.
This is an irregularity which I do not propose dealing with any
further.
[77] He testified about another description Tiny gave in the
statement -
"The suspect was wearing a short trouser with a blue colour on
the chest and also a cap. I can identify the suspect
if he can
be found and arrested ..."
Here she says nothing about the length of the suspect. The
witness said that to him, Tiny said that the suspect was short,
but
he cannot remember evidence about how he was clad. He also does
not understand the description about the "short
trouser with the
blue colour on the chest".
[78] The witness could not deny that the appellant was identified at
the identification parade because Tiny knew him.
[79] The witness admitted that there was a feud between the two
families.
"There was a feud between the two families. Police
officers were involved, so the public prosecutor sent me to Mwabethi
to obtain her statement as the prosecutor wanted to know what was
happening between the two families.
Do you remember what Mwabethi told you in her statement? --- It
happened a long time ago, so I cannot remember.
This issue of Mwabethi being accused of having hired a person to kill
the deceased, do you know about it or do you not know about
it? --- I
do not know it.
Did you hear about it? --- Yes I once heard it from Mwabethi.
She told me that people are saying that she has hired a hit
man.
You can finish, what did Mwabethi tell you? --- Mwabethi told me that
the community members are saying that she is the one who
hired a hit
man to kill one Lerisa Ngobeni. (
My note
: this evidence
was repeated when the learned Judge asked for clarification.
This evidence is clear corroboration of the evidence
of the
appellant, to which I have referred.)
[80] After the evidence of this witness, the state case was closed.
[81] It is noteworthy that Leonard Maluleke was not called to give
evidence.
[82] An application for the discharge of the appellant in terms of
section 174
of the
Criminal Procedure Act no 51 of 1977
was refused.
(iv)
The appellant, Godfrey Tshabalala
[83] I have dealt with the major portion of his evidence.
[84] He was subjected to lengthy and intensive cross-examination,
almost to the point of exhaustion.
In my view, he came across as a strong and convincing witness, and he
was not in any way discredited. He insisted throughout
that he
was not in any way involved with the shooting, did not own a firearm
and was the victim of unfair accusations flowing from
the family
feud. He insisted that him and Tiny knew each other.
[85] He gave compelling evidence about the alibi. He gave an
acceptable and plausible explanation about his inability to
call his
girl friend as a witness. Because of the incarceration and the
consequences of him being charged, and convicted,
he lost touch with
the girl friend and their relationship came to naught. He tried
to trace her but was unable to do so.
[86] He gave strong evidence about the alibi, which, of course, is
undisputed. His compelling evidence about the rumours
in Tiny's
family that Mwabethi had hired a hit man was, as I have said,
corroborated by the investigating officer, Inspector Khoza.
[87] His evidence about his strong acquaintance with Maluleke, to
which I have referred, was undisputed.
[88] I consider it unnecessary to analyse any further aspects of his
evidence.
[89] On the totality of the evidence, and given the strong and
convincing showing of the appellant in the witness-box, and
unequivocal
evidence about the family feud and probable foul play on
the part of Tiny and her family, and strong indications, on the
probabilities,
that Tiny's family accused Mwabethi of having hired a
hit man, pointing fingers at the appellant, I am of the view that the
learned
Judge's decision to reject the appellant's version as not
being reasonably possibly true is a clear misdirection.
In
S v Shackell
2001 4 SA 1
(SCA) the following was said at
12I-13C:
"There is a more fundamental reason why I do not agree with this
line of reasoning by the court
a quo
. 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."
(v)
Phumudzo Carlton Mabade
[90] This is the plumber. It should be remembered that he
testified five years after the event.
[91] I have dealt with the fact that his evidence was not transcribed
and I have referred to the "agreement" between
the trial
counsel that the learned Judge's summary of his evidence is accurate.
[92] The summary of his evidence comprises one page. It amounts
to the following: he is not related to the accused (appellant)
neither is the appellant his friend. On 27 March 2004 he
was in Johannesburg and did meet the appellant. He is
employed
at Boost Property Management as a plumber. On 27 March 2004 he
saw the appellant between 13:00 and 14:00.
He came to him and
asked him to accompany him to Rosettenville where he made a quotation
for plumbing at the accused's girl friend's
flat. They went to
a hardware in Rosettenville where they did not get all the stuff they
needed for plumbing. From
there they went to a hardware in
Hillbrow where they found all the materials they needed. He
loaded all the materials into
a Hyundai which he thinks belongs to
the accused's girl friend. From there they proceeded to his
office where he cut the
pipes. Thereafter they waited for
Kelvin Pfari and Tshilidzi because there was a sort of a stokvel.
At about 18:00
to 19:00 he parted ways with the appellant.
(
My note
: all this is in line with the evidence of the
appellant. The time mentioned is also the alleged time of the
shooting.)
He then saw the accused on the 28
th
in the morning around
07:00 at Rosettenville, where he went to fix toilet joints and some
other supply pipes of water. He
was paid R950,00 and issued an
invoice receipt. Next to the total amount of money on the
receipt appears the signature of
the owner one Tiny or Tini whose
real name he does not know. He does not know what has happened
to the original receipt book.
At a certain time a policeman
wanted to see the receipt book. According to him he saw the
accused at about 14:00 because
he was with him "unless he had
used a broom or bread(?)" (
My note
: the last
phrase I do not understand. The signature on the receipt, or
invoice, is not of one Tiny, but clearly that
of Khutswane, his
client and appellant's girl friend.)
[93] All this is directly in line with the evidence of the appellant,
subject to the remarks I have made.
[94] The invoice is exhibit "K". It is for an amount
of R950,00 and is for "Rosettenville plumbing, blockages
and
reput the PVC pipe". It is dated 28 March 2004 although
the 8 of the 28 may have been tampered with or changed.
The amount due is reflected as R950,00 (no changes) and at the bottom
the "total" is also R950,00 although the 5 seems
to have
been changed from R900,00 to R950,00. This puts it in harmony
with the similar figure appearing higher up in the
column.
This invoice contains the clear signatures of "Mabade" and
"Khutswane" which is the name of the appellant's
girl
friend. All this, in my view, constitutes clear corroboration
of the alibi evidence.
[95] All the learned Judge had to say about Mabade's evidence when
evaluating the evidence was the following:
"Carlton Mabade could not take the alibi evidence of the accused
any further. He denied that the accused has ever left
Johannesburg. The invoice was issued by him to support the date
of 28 March 2004 as the date on which he was with the accused.
But the 8 of the 28 on the receipt had been altered by him and he
stated under cross-examination he had no answer as to the changed
date."
Of course, not having had the benefit of reading the transcribed
evidence, one must be careful not to be unduly critical of the
approach of the learned Judge, but it does seem that, apart from this
perceived irregularity in the form of the changed date, the
alibi
witness, by and large, corroborated the evidence of the appellant in
every material respect. There is also no indication
that he had
any reason, flowing, for example, from a close association with the
appellant, for supporting the latter's evidence.
[96] Counsel for the appellant, in supplementary heads of argument,
referred us to
State v Liebenberg
2005(2) SACR 355 (SCA) at
358h where the following was said with regard to an alibi defence:
"The approach adopted by the trial court to the alibi evidence
was completely wrong. Once the trial court accepted that
the
alibi evidence could not be rejected as false (
my note
: this
may not be the case here, but given the fact that the alibi evidence,
apart from the amended invoice, was undisputed, it
seems that the
same approach in this matter would be valid) it was not entitled to
reject it on the basis that the prosecution
had placed before it
strong evidence linking the appellant to the offences (
my note
:
for the reasons mentioned, this did not happen in the present case)
the acceptance of the prosecution's evidence could not, by
itself
alone, be a sufficient basis for rejecting the alibi evidence.
Something more was required. The evidence must
have been, when
considered in its totality, of the nature that proved the alibi
evidence to be false.
'If there is evidence of an accused person's presence at a place and
at a time which makes it impossible for him to have committed
the
crime charged, then if on all the evidence there is a reasonable
possibility that this alibi evidence is true it means that
there is
the same possibility that he has not committed the crime.' – at
359c-e."
In this case, the alibi evidence is compelling and undisputed and
corroborated by Mabade.
In view of the authorities quoted, I am of the opinion that the
learned Judge's rejection of the alibi evidence as not reasonably
possibly true amounts to a material misdirection.
(vi)
NwaPiet Lengwhisa Makamu
[97] As stated, her evidence was also not transcribed. The
summary of her evidence by the learned Judge is contained in one
page
of the judgment. It amounts to the following: she knows
the appellant. His mother is her younger sister.
She
knows why the appellant has been arrested. She was surprised to
hear a rumour that she gave the appellant R2 000,00
to kill
Lerisa.
She heard from her son-in-law that there was a meeting where Gezani
(
my note
: the investigating officer, Khoza) said she had given
R2 000,00 to the accused to kill Lerisa. She went to
Gezani's
place to ask him why he had said she had killed his wife.
Gezani was in the company of people and nine policemen.
When she confronted Gezani about the rumour he denied having said
that. Then Ndavezitha Khamanyani who is no longer alive
replied
that they had heard Gezani say so. At this meeting there were
nine policemen and she knew one of them Leonard Maluleke.
She also knows Tiny Ngobeni and this Tiny knows the appellant.
She is related to Tiny Ngobeni because her child was married
at the
same homestead with Tiny's mother.
At the funeral of her child the appellant was present and he read the
wreaths. It is not true that Tiny does not know the
appellant.
She does not know who killed Lerisa. She had heard the name
Nwalangwane mentioned at Mafamandu.
[98] If anything, this evidence corroborates that of the appellant
and also, in a way, that of Khoza.
[99] The criticism of the evidence of NwaPiet, in the judgment, if
any, is difficult to ascertain, it seems to amount only to an
observation that the witness could not convincingly confirm that Tiny
knew the appellant because she was still a child when the
appellant
left Olifantshoek in 1990. I have dealt with this aspect.
[100] So much for a summary of the evidence. I turn to brief
conclusionary remarks.
Conclusionary remarks
[101] Most of my conclusions have already been spelt out in some
detail.
[102] An observation by the learned Judge that Tiny had no motive to
falsely implicate the accused because she did not know him
before the
incident is clearly an over simplification and a misdirection.
The only criticism of the evidence of the
appellant, that I can see,
is that -
"He was also evasive during cross-examination. He could
not answer direct questions with direct answers except to resort
to
'I believe'. What he believed could be hardly tested by
cross-examination because beliefs do not amount to facts."
I have difficulty with this criticism, such as it may be. No
details are given about the perceived evasiveness and failure
to give
direct answers. I repeat that, in my view, the appellant was a
strong witness and not in any way discredited in lengthy
cross-examnination. It cannot be said that the appellant's
version is not reasonably possibly true, especially in the light
of
the uncontested evidence about the family feud and the uncontested
alibi evidence.
[103] The learned Judge, in his evaluation, makes the following
remarks about Tiny's evidence:
"Although Tiny Ngobeni is a single witness who placed direct
evidence before court inculpating the accused as the perpetrator
of
the shooting of the deceased it is alarming surprising to observe
that it was never directly put to her by the defence that
her
observation was mistaken or that he does not know the accused from 27
March 2004. This is so despite Tiny's direct evidence
that she
had observed the person who shot at the deceased for a considerable
time. Instead it was put to her that she was
related to the
accused which factor she denied knowledge of.
It was never put to her that she had known the accused prior to the
shooting incident nor was it ever put to her that accused had
known
her prior to the incident."
This summary is clearly wrong and not in line with the evidence which
I have dealt with in some detail. This observation
also amounts
to a material misdirection.
[104] Although there may have been some irregularities in the manner
in which the identification parade was conducted, details
of which I
briefly referred to, I do not consider it necessary to make a finding
in that regard.
In my view, given the overwhelming evidence of a family feud and a
clear motive on the part of Tiny to falsely implicate the appellant,
such a state of affairs would in any event lead to the identification
parade being tainted.
[105] In all the circumstances, and for the reasons mentioned, I have
come to the conclusion that the learned Judge erred, and
misdirected
himself, in finding that the verion of the appellant, including the
alibi evidence, could not be said to be reasonably
possibly true.
There was no evidence about counts two and three, alleged unlawful
possession of a firearm and ammunition.
Count four, pointing of
a firearm, is linked to the murder count. The appellant was
clearly entitled to an acquittal.
The order
[106] I make the following order:
1. The appeal against the convictions and sentences is upheld.
2. The order of the court
a quo
and the convictions and
sentences are set aside and replaced with the following:
"The accused is found not guilty and discharged."
W R C
PRINSLOO
JUDGE OF THE GAUTENG DIVISION, PRETORIA
I agree
N M MAVUNDLA
JUDGE OF THE GAUTENG DIVISION, PRETORIA
I agree
A A LOUW
JUDGE OF THE GAUTENG DIVISION, PRETORIA
HEARD ON: 27 FEBRUARY 2015
FOR THE APPELLANT: P F PISTORIUS
FOR THE RESPONDENT: H CREIGHTON