About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 847
|
|
Maluleka v S (A783/15) [2016] ZAGPPHC 847 (20 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A783/15
DATE:
20 SEPTEMBER 2016
In the
matter between:
DAVID SELLO
MALULEKA
.................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
MOTHLE J
1.
On 21 November 2012 the
Appellant was convicted of murder and robbery with aggravating
circumstances by the Honourable Madam Justice
Kubushi (“Kubushi
J”)
in the High Court,
Gauteng Division, Pretoria and sentenced to 18 years for murder and
12 years for robbery with aggravating circumstances.
The presiding
Judge ordered that the sentences should run concurrently, effectively
sentencing Appellant to 18 years’ imprisonment.
2.
On 1 July 2015 Kubushi J
granted leave to appeal against conviction only. The Appellant now
comes before the Full Court of this
Division on appeal against the
conviction.
3.
The conviction arises out of
an incident which occurred during the night of 12 to 13 November 2009
when an 89-year old pensioner,
Frans Adriaan Swemmer, (“the
deceased”),
who was at
that time living alone, was attacked and murdered in his home in
Monument Park, Pretoria. His body was found the next
day. Some of his
belongings including a Mercedes Benz motor vehicle were missing.
4.
On the morning of the 13
November, the police arrested Mothiba who was found near the stolen
motor vehicle in Hammanskraal, in the
City of Tshwane. Mothiba
implicated the Appellant and took the police to the house of the
Appellant where he was also arrested.
5.
Mothiba pleaded guilty and
after separation of the trials, he was convicted and sentenced. He
then turned to testify against the
Appellant on behalf of the State,
implicating him in the commission of both offences.
6.
There were two mutually
exclusive versions presented by Mothiba on the one hand and Appellant
on the other. Mothiba’s version,
which was accepted by the
Court, is basically that Appellant and another person accompanied him
to the home of the deceased where
the deceased was robbed and
murdered. The three of them then drove to Hammanskraal in the vehicle
of the deceased with Appellant
being the driver. They then arrived at
the home of Appellant and left some of the items they stole from the
home of deceased, which
they placed in the garage and the house.
7.
The Appellant was also given
the cell phone of the deceased which he sold or pawned to his
girlfriend for R100, money which was
used to put petrol in the
vehicle and also buy beers.
8.
Appellant’s version on
the other hand is that he first met Mothiba at the Hammanskraal taxi
rank. Thereafter one evening (which
was the Thursday on the day of
the robbery at Monument Park), he saw Mothiba at a tavern in
Hammanskraal. He then agreed to a request
by Mothiba to take him to
his home in order to store some items for him, including a cell phone
which Mothiba produced from his
pocket.
9.
The Court a quo
accepted Mothiba’s evidence
in that it was corroborated by other witnesses called by the State.
This corroborative evidence
included the police having found articles
stolen from the home of the deceased, at the parental home of the
Appellant; Blood stained
clothes in the Appellant’s bedroom and
Appellant’s finger print found on the rear view mirror of the
stolen vehicle.
The family of the Appellant’s girlfriend and
the deceased’s friend also testified regarding the stolen
articles.
10.
The trial court found that
Appellant’s version could not be reasonably possibly true for
the following reasons:
10.1
He was evasive under
cross-examination and failed to answer some questions. This is born
out by the transcribed trial record presented
to the Appeal Court;
10.2
He built his story as he
went along and most of the answers were not put to the state
witnesses, especially to Mothiba;
10.3
He adapted his version as he
went along;
10.4
His version was improbable
in several other respects including that:
10.4.1
The Court could not find any
reasonable motive for Mothiba to implicate Appellant;
10.4.2
The blood stained clothing
of the deceased was found in Appellant’s bedroom;
10.4.3
The reason he supplied for
pawning the cell phone to his girlfriend;
10.4.4
The version that Mothiba
travelled to Hammanskraal with the hope to find Appellant whom,
according to Appellant, he had only met
once at a taxi rank;
10.4.5
He could not provide any
reason why Mothiba would leave the clothing of the deceased at
Appellant’s home and the contradictory
and unsatisfactory
explanation as to how Appellant’s finger print was found on the
rear view mirror of the stolen vehicle.
11.
In analysing the evidence,
the trial Court found that Mothiba’s evidence had to be viewed
with caution and circumspection
because he was an accomplice as well
as a single witness in regard to Appellant’s role in the murder
and robbery. The Court
further acknowledged the fact that a risk of
implicating an innocent accused is reduced by corroborative evidence
from elsewhere
in the State’s case. Further, the trial Court
analysed and accepted the demerits in Mothiba’s evidence and
concluded,
after observing his demeanour, improbability of his
version and contradictions inherent in his evidence, that his version
could
not be reasonably possibly true.
12.
In this regard, this Appeal
Court accepts that what weighs heavily against Appellant is the
finding by the trial Court regarding
his credibility as a witness.
Having regard to the trial record, this Appeal Court is unable to
find anything that would indicate
otherwise in regard to the
Appellant’s credibility and demeanour on the witness box as
different from that found by the trial
Court. In this regard we refer
to the matter of R v Dhlumayo and Another
1948 (2) SA
677
(A),
which basically
cautions an Appeal Court to be very reluctant to upset the findings
of the trial judge, as the trial court
“has advantages-
which the appellate court cannot have- in seeing and hearing the
witnesses and in being steeped in the atmosphere
of the trial. Not
only has he had the opportunity of observing their demeanour, but
also their appearance and whole personality.
This should never be
overlooked. ”
13.
Having regard to the
totality of the evidence as presented in the record of the trial
Court, this Appeal Court is of the view that
Mothiba’s
evidence, corroborated by other State witnesses and circumstantial
evidence presented through these witnesses,
enabled the State to
prove its case beyond reasonable doubt. On the other hand,
Appellant’s version, having regard to the
improbabilities
inherent therein, cannot be accepted as reasonably possibly true. In
this regard, it does not pass the test laid
out in State v Shackel
2001 (4) SA 1
(SCA)
in
regard to the incidence of the burden of proof for both the State and
the accused in a criminal trial.
14.
This Appeal Court is
therefore unable to find any reason to interfere with the conviction
by the trial Court and consequently the
appeal cannot succeed.
15.
In the premises l make the
following order:
1.
The Appeal is dismissed;
2.
The conviction of the trial
Court is confirmed.
S P MOTHLE
Judge of the High Court
Gauteng Division
PRETORIA.
I agree:
W HUGHES
Judge of
the High Court Gauteng Division PRETORIA.
I agree:
MTWALA
Acting
Judge of the High Court Gauteng Division PRETORIA.
For the
Appellant:
Ms M M P Masete
Instructed
by.
Pretoria Justice Centre Church Square PRETORIA
For
the State:
Adv. E Leonard SC
Instructed
by:
The Director of Public Prosecutions PRETORIA