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[2016] ZAGPPHC 372
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Mtimkulu v S (A366/15) [2016] ZAGPPHC 372 (16 May 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
[GAUTENG
DIVISION, PRETORIA]
REPUBLIC
OF SOUTH AFRICA
CASE
NO:A 366/15
DATE:
16 MAY 2016
In
the matter between:
MVULA
JOHANNES
MTIMKULU
.......................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The appellant was convicted of murder
and sentenced to 15 years imprisonment in the Vanderbijlpark Regional
Court, Gauteng Division.
[2]
The appeal was against both conviction
and sentence.
[3]
On 14 March 2016, the court made an
order that the appeal be upheld and that the conviction and sentence
be set aside. The reasons
for the order appear infra.
EVIDENCE
[4]
The appellant was charged with the
mu
rder of his girlfriend, [D……] [R……]
[P……]
(“the deceased”).
It was alleged that the murder took place on 31 March 2012 at the
deceased's place of residence.
[5]
Several witnesses were called by the
State and I propose to summarise their evidence chronologically.
[6]
[M……] [J……] [M……]
(“M…….
”) testified
that he knew the deceased because they both used to visit the
decea
sed’s neighbour, known as [M…..]
.
On
30 March 2012, he was at [M…..
's
]
residence when the deceased called him and told him to tell the
appellant that she went to his home to fix his television aerial.
[7]
[M…….]
found the appellant
on the stoep of the deceased’s house and related the version he
had received from the deceased to the
appellant. The ap
pellant
did not respond. [M……] returned to [M…..
’s
]
house and shortly thereafter he was called outside by the appellant
who insulted h
im. He once more left for [M……
's
]
house and whilst leaving he heard the appellant and the deceased
arguing. They were still outside the house of the deceased and
it was
between 17:00 to 18:30 in the evening. He did not see either the
appellant or the deceased again on Friday, 30 March 2012.
[8]
On the Saturday morning at approximately
9:00 he saw the appellant in the company of the police. He later
learned that the deceased
had passed away.
[9]
The neighbour,
[
M……] [T……], referred to as M…..
by the previous witness, testified next. For the sake of clarit
y,
I will refer to her as M…….
. She
testified that she was in her house on 31 March 2012 when she heard
screaming. She, however, immediately changed her version
and
testified that she actually heard noises of people fighting. The
noises were coming from the deceased’s house. Although
she was
not certain of time she testified that it was at approximately 23:00.
She remained house because she was afraid to go outside.
[10]
M……
testified that she saw the appellant the next morning when he was
leaving the deceased’s house. He had his clothes with him.
After a while she saw the appellant arriving with the police at the
house of the deceased.
[11]
P…..
M……..
, the appellant’s son,
testified that when he arrived at home on Friday, 30 March 2012 at
approximately 20:30, he found the
appellant at home. The next morning
the appellant woke him up and told
him that he is going to K……
to give his bankcard to a sibling
of P…….
.
[12]
P………
further testified that after the appellant left he wanted to play
music and realised that the CD player was not at home. He thereupon
proceeded to the deceased's house to look for the CD player. Upon his
arrival at the deceased's house he found the door and burglar
door
slightly open. He knocked at the door, but did not get
any
response. He went to M……
’s
house to
enquire, but was told by M……..
that she has not seen the deceased since the previous day. He
thereupon entered the house of the deceased and found "the house
(was) mixed up. There was a (indistinct) on the floor and water and
some bottles and the refrigerator was also open. ”
[13]He
furthermore saw the deceased lying next to her bed with blood on her
face. He was extremely shocked and
decided to go to K…..
to inform the appellant of the deceased
demise. The appellant
asked P……
”. What are you
saying?” The appellant ther
eupon called his sister and
P…..
had to repeat the bad news. The
appellant informed his sister that he had left the deceased with
someone and that he had taken
his bank cards and went home.
[14]
P……
testified that the distance between the deceased’s home and his
house was approximately one kilometre. He told the court
that,
although, the appellant and the deceased resided in the deceased’s
house, they would normally sleep at his father s
house on month ends.
When he found the appellant at home on the Friday night the appellant
was in good spirit
s and even made a joke with P….
.
[15]Detective
constable Macheve testified that he arrived at the deceased’s
house at 16:00. He entered the house and noticed
a pot on the kitchen
floor and meat strewn all over the floor. Upon entering the
deceased’s bedroom, he observed the deceased
on the floor and
her clothes were full of blood. There was also blood on the wardrobe
and on the wall. He was thereafter introduced
to the appellant and he
requested the appellant to show him the clothes that he wore the
previous day. The appellant immediately
took Macheve to his house. At
this stage of the proceedings a trial-within-a trial was conducted in
order to determine the admissibility
of statements made by the
appellant to Macheve. At the conclusion of the trial-within-a-trial,
the court ruled that such evidence
would be inadmissible.
[16]The
evidence of the pointing was, however, allowed and Macheve testified
that the appellant handed over the clothes he was wearing
the
previous day. Macheve examined the clothes and found two blood stains
on the appellant's overall top. He furthermore noticed
that there
were gravy stains on the t-shirt the appellant wore the previous day.
These items were sent for DNA analyses.
[17]The
DNA results were handed in as an exhibit, but did not assist the
court in its finding. The court correctly found that the
DNA analyses
was irrelevant. The State handed in further exhibits pertaining to
the post mortem of the deceased, the transfer of
her body and the
identification of the body.
[18]The
State closed its case and after an unsuccessful application for
discharge in terms of
section 174
of the
Criminal Procedure Act, 51
of 1977
, the appellant testified in his defence.
[19]He
testified that he went to the deceased's house after work and found
the house locked. He waited in the yard and a while later
the
decea
sed arrived in the company of M…..
.
Both were under
the influence of liquor. M……
told him that the deceased went to a neighbour’s house to fix a
television. B
ecause he was talking to M……
and no
t the deceased, he asked M…….
to request his bank card and cell phone from the deceased.
[20]The
deceased unlocked the house and gave him the requested items. It was
approximately 16:00 in the afternoon and he went home.
[21]T
he
appellant testified that P…..
arrived at
the house at approximate
ly 20:00. He woke up before P……..
the next morning a
nd after speaking to P…
,
he left.
[22]
Upon
being informed by P……
of the
deceased’s death, he went to the police station and accompanied
the police to the deceased’s
house. When requested by
M……
to hand over the clothes he
wore the previous day, he complied with the request. During
cross-examination the appellant denied
that there was blood stains on
his overall top.
[23]In
response to a question by the court, the appellant testified
that
he was referring to M…. when he told P…….
that he left the deceased in the company of another man on the
Friday.
JUDGMENT:
COURT
A QUO
[24]In
its judgment the court a quo reached various conclusions that were
not supported by the facts. The relevant portions of the
judgment are
discussed infra.
[25]
“I
am of the view that the fact that the he did not sleep at the
deceased's place that night is a [indistinct] by his [indistinct]
that he knew there was something wrong that has happened to the
deceased. It is not just a coincidence that on the night, on the
very
first night he was away then the deceased was attack. ”
[26]The
appellant testified that he left the deceased’s house at
approximately 16:00 on Friday, 30 March 2012. He had his
b
ank
card in his possession. P……
testified that the appellant and the deceased normally slept at the
appellant’s home on month ends. The 30
th
of March was month end. P…..
found the
appellant at home at approximately 20:00. He testified that the
appellant was in a good mood and he did not testify that
he noticed
an
ything out of the ordinary. P…..
was not asked in what condition the appellant’s clothing was,
but one can accept if the clothes were blood stained, he would
have
noticed it.
[27]
M…..
testified that she heard screaming and/or fighting emanating from the
house of the deceased at approximately 23:00. At 23:00 the
appellant
was already at home a
ccording to the evidence of P……..
P……
was awoken the next morning
by the appellant. The appellant wante
d to buy groceries, etc
for P…..
’s sibling This most
probably explains why the appellant requested his bank card from the
deceased on the previous day.
[28]I
view of this evidence, I struggle to find the logic in the court a
quo’s reasoning that the appellant slept at home
because “he
knew there was something wrong with the deceased.
”
Why is it not a coincidence that the deceased was murdered on the
first night they did not sleep together? The deceased was alone
at
home and could have been attacked by someone else.
[29]
What
I am saying is here is a
man, he is insulting M……..
for no reason. Just immedi
ately after somebody hears the n
oise
of a fi
g
ht in that house that is not
strange"
[30]This
finding does not accord w
ith the evidence. On M……
M…….
’s version, the
appellant insulted
him during the afternoon. M…….
testified that she only heard screaming / fighting at approximately
23:00 that night.
[31]
“In
[indistinct] t
he evidence of M…….. T……
(M……
)
that
she saw accused moving out of the house of the deceased carrying his
clothes. Behind him, that is the accused, in the house
was his
girlfriend wounded, blood stained, lying dead. With this piece of
evidence alone the state has been able to prove beyond
reasonable
doubt that the guilt of the accused."
[32]The
court a quo fai
led to take the evidence of P…….
into account. P……
testified that
his father was at home on the morning of 31 March 2012. This evi
dence
contradicts that of M….. P……..
confirmed the version of the appellant that he left his house on the
morning o
f 31 March 2012 to go to K…..
.
The appellant was indeed found
by P…… in K…….
.
It is improbable that the appellant would go to the house of the
deceased on the morning of 31 March 2012, simply to collect his
clothes.
[33]
“In
this case, our present case, we do not know whose blood was that, but
by way of illustration say that was the blood of
the deceased. The
accused was not going to stay with that blood, he was going to wash
it away or to bum those clothes with blood
so the police had to act
on the spot or that evidence could have easily been destroyed."
[34]The
appellant had ample time to get rid of h
is clothes if he
wanted to. P….
found him at home on
Friday night at 20:00. Having heard of the death of the deceased, the
appellant went to the police station
and accompanied the police to
the deceased’s house. He apparently remain
ed on the
scene, because M……
found him on
the scene at 16:00 on Saturday, 31 March 2012.
[35]Why
would the appellant keep the clothes he was, according to the court a
quo, wearing when he murdered the deceased? The appellant
could have
cleaned the clothes or burnt the clothes as suggested by the court a
quo, but he does not. He keeps the clothes and
upon being requested
by the police, immediately takes the police to his house and hand the
clothes over. The scenario sketched
by the court a quo is not in line
with the probabilities emanating from the evidence that was
presented.
[36]
M………
did testify that there were two blood stains on the appellant’s
overall top. Save for the fact that there is no evidence
linking the
blood found on the top to the deceased, there is, furthermore, no
evidence as to the extent of the two blood stains.
Having regard to
the massive injuries the deceased sustained, the fact that her
clothes were blood soaked and that there was blood
on the wardrobe
and walls, one would expect more than two blood stains on the
appellant’s overall top. No blood was found
on the appellant's
T- shirt.
[37]A
further unexplained feature is the open door of the fridge. The
appellant was living with the deceased in her house. Why would
he
leave the door of the fridge open? It simply does not make sense.
[38]Finally
and in evaluating the appellant’s version of events, the court
a quo made the following sweeping remarks:
“
The
state witnesses were honest and reliable, the accounts given by them
were credible and reliable in all material respects and
satisfactory
beyond reasonable doubt. There is no reasonable possibility that the
defence raised by the accused could be true.
”
APPLICABLE
LEGAL PRINCIPLES
[39]In
S v Shackell
2001 (2) SACR 185
SCA, Brand JA summarised the test to
be applied at the end of a criminal trial at 194 g-l, as follows:
“
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.
[40]The
court a quo did not state which portion/s of the appellant’s
version is inherently improbable. The court erred in
not having du
e
regard to the evidence of P…….
and more specifically the portions of his evidence that substantiates
the appellant’s version. The court a quo, furthermore,
erred in
not properly considering the probabilities that were in favour of the
appellant’s version.
[41]Having
regard to the evidence in totality, I could not find any basis to
reject the version of the appellant as so improbable
that it could
not be regarded as reasonably possibly true.
[42]Consequently,
the court a quo’s finding that the State proved its case beyond
reasonable doubt is incorrect and stands
to be set aside.
[43]An
order to this effect has already been made.
JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
I ag
ree
D T SKOSANA
ACTING JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
It
is so ordered.
Appearances
:
Counsel
for the Appellant Advocate Mhlahlo
Instructed
byLegal Aid, Pretoria
Counsel
for the state Advocate Mnisi
Instructed
by The State