About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2015
>>
[2015] ZAFSHC 41
|
|
Ntelekoa and Another v S (A28/2013) [2015] ZAFSHC 41 (5 March 2015)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A28/2013
DATE: 05 MARCH 2015
In the appeal between:
MOHAPI JOHANNES NTELEKOA &
ANOTHER
...........................................................
Appellants
And
THE
STATE
............................................................................................................................
Respondent
CORAM: DAFFUE, J et LEKALE, J et
HINXA, AJ
JUDGMENT: DAFFUE, J
HEARD ON: 2 MARCH 2015
DELIVERED ON: 5 MARCH 2015
INTRODUCTION
[1] On 24 January 2013 appellants were
convicted by Van Zyl J of murder and housebreaking with the intention
to rob and robbery
with aggravating circumstances. The next day both
were sentenced to life imprisonment in respect of the first count and
15 (fifteen)
years’ imprisonment in respect of the second
count. The appellants were granted leave to appeal against their
convictions
to the full bench.
GROUNDS OF APPEAL
[2] The convictions are attacked on the
following bases. 1st Appellant avers that the court a quo erred (a)
in finding that the
State has proved its case beyond reasonable
doubt, (b) in finding that his pointing out complied with all formal
requirements,
that it was made freely and voluntarily and without
being unduly influenced, and (c) in rejecting his alibi as false and
not reasonably
possibly true.
[3] 2nd Appellant avers that the court
a quo erred in (a) making a credibility and reliability finding in
respect of the witness
Mapule Sylvia Ntelekoa, the mother of 2nd
appellant, and not considering her evidence with caution as she was a
single witness,
(b) finding that 2nd appellant wanted to confess when
he communicated with his mother, (c) concluding that 2nd appellant’s
admission that he “ook daar saam met Lebohang was” with
reference to Mr Ben Steyn, the deceased, (and after his confession
that he and Lebohang had murdered a white person - not Mr Steyn -)
was sufficient to convict 2nd appellant on both counts as charged
and
thus finding that the only reasonable inference to be drawn from the
proven facts was that the 2nd appellant committed the
crimes.
THE RELEVANT LEGAL PRINCIPLES
[4] Where an appeal is lodged against a
trial court’s findings of fact, the court of appeal must take
into account that the
court a quo was in a more favourable position
than itself to form a judgment. When inferences from proven facts
are in issue,
the court a quo may also be in a more favourable
position than the court of appeal, because it is better able to judge
what is
probable or improbable in the light of its observations of
witnesses who have appeared before it. Therefore, where there have
been no misdirections on fact a court of appeal assumes that the
court a quo’s findings are correct and will accept these
findings, unless it is convinced that they are wrong. See R v
Dhlumayo and Another
1948 (2) SA 677
(AD) at 705 - 6.
[5] Therefore, in order to interfere
with the court a quo’s judgment it has to be established that
there were misdirections
of fact, either where reasons on their face
are unsatisfactory, or where the record shows them to be such. See
also S v Monyane
and Others
2008 (1) SACR 543
(SCA) at para [15]
where the Supreme Court of Appeal stated that it is only in
exceptional cases that that Court will be entitled
to interfere with
the trial court’s evaluation of oral evidence, and I quote:
“This court's powers to interfere on
appeal with the findings
of fact of a trial court are limited. It has not been suggested that
the trial court misdirected itself
in any respect. In the absence of
demonstrable and material misdirection by the trial court, its
findings of fact are presumed
to be correct and will only be
disregarded if the recorded evidence shows them to be clearly wrong
(S v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645e - f). This, in
my view, is certainly not a case in which a thorough reading of the
record leaves me in any doubt
as to the correctness of the trial
court's factual findings. Bearing in mind the advantage that a trial
court has of seeing, hearing
and appraising a witness, it is only in
exceptional cases that this court will be entitled to interfere with
a trial court's evaluation
of oral testimony (S v Francis
1991 (1)
SACR 198
(A) at 204e).”
There may also be misdirections, though
the reasons were satisfactory, if it has been shown that the court a
quo had overlooked
other facts or probabilities.
[6] The State’s case was largely
based upon circumstantial evidence, in particular in respect of 2nd
appellant. In R v De
Villiers
1944 AD 493
at 508 - 9 the Appeal
Court referred to the well-known dictum in R v Blom
1939 AD 188
at
202 pertaining to the test to be applied when reliance is placed on
circumstantial evidence and pointed out that it is not each
proved
fact that must exclude all other inferences, but the facts as a whole
must do so, and continued as follows:
“The Court must not take each
circumstance separately and give the accused the benefit of any
reasonable doubt as to the inference
to be drawn from each one so
taken. It must carefully weigh the cumulative effect of all of them
together, and it is only after
it has done so that the accused is
entitled to the benefit of any reasonable doubt which it may have as
to whether the inference
of guilt is the only inference which can
reasonably be drawn. To put the matter in another way: the Crown
must satisfy the Court,
not that each separate fact is inconsistent
with the innocence of the accused, but that the evidence as a whole
is beyond reasonable
doubt inconsistent with such innocence.”
See also S v Ntsele
1998 (2) SACR 178
(SCA) at 182b - f cited with approval in S v Boesak
[2000] ZASCA 112
;
2000 (1) SACR 633
(SCA), para [13] at 638f and S v Reddy and Others
1996 (2) SACR 1
(A)
at 8c – g and especially the following dictum:
“A number of circumstances, each
individually very slight, may so tally with and confirm each other as
to leave no room for
doubt of the fact which they tend to establish.
. . . Not to speak of greater numbers, even two articles of
circumstantial evidence,
though each taken by itself weigh but as a
feather, join them together, you will find them pressing on a
delinquent with the weight
of a mill-stone. . . .”
As mentioned in these three judgments
the ambit of the concept of reasonable doubt does not go so far that
the State must prove
the guilt of the accused “bo elke sweempie
van twyfel”, or put otherwise, “beyond a shadow of a
doubt.”
[7] It is also necessary to consider
whether an accused who deliberately gives false evidence in the hope
of, e.g. escaping conviction,
should lose his case as a penalty for
perjury. The often-quoted dictum of Malan JA in R v Mlambo
1957 (4)
SA 727
(A) at 738 B – D must be considered and I quote:
“Moreover, if an accused deliberately takes the risk of giving
false
evidence in the hope of being convicted of a less serious crime
or even, per chance, escaping conviction altogether and his evidence
is declared to be false and irreconcilable with the proved facts, a
court will, in suitable cases, be fully justified in rejecting
an
argument that, notwithstanding that the accused did not avail himself
of the opportunity to mitigate the gravity of the offence,
he should
nevertheless receive the same benefits as if he had done so.”
It has been recognised in S v Steynberg
1983 (3) SA 140
(AD) at pp
146 – 149 that the application of the Mlambo approach often has
satisfactory and correct results, but the application
does not mean
an inference must be drawn that an accused had the intention to kill
someone where he has provided a false explanation
about a fatal
assault he perpetrated on someone about which he alone was able to
give evidence. Every case must be decided on
its own particular
circumstances. The nature of the accused’s lies is of great
importance, but in addition, the context
of the case and all other
factors which appear from the evidence are relevant to the
adjudication of the question whether the inference
that the accused
committed the crime(s) could be drawn. In considering this, the
rules of logic in connection with circumstantial
evidence mentioned
above must be observed.
[8] It is acceptable in evaluating the
evidence in its totality to consider the inherent probabilities.
Heher AJA (as he then was)
dealt with this aspect as follows in S v
Chabalala
2003 (1) SACR 134
(SCA) at para [15]:
“The correct approach is to weigh
up all the elements which point towards the guilt of the accused
against all those which
are indicative of his innocence, taking
proper account of inherent strengths and weaknesses, probabilities
and improbabilities
on both sides and, having done so, to decide
whether the balance weighs so heavily in favour of the State as to
exclude any reasonable
doubt about the accused's guilt.”
[9] Although it is permissible to test
the accused’s version against the inherent probabilities, it
cannot be rejected merely
because it is improbable. It can only be
rejected on the basis of the inherent probabilities if it can be said
to be so improbable
that it cannot reasonably possibly be true. See:
S v Shackell
2001 (2) SACR 185
SCA, para [30] at 194h.
[10] In assessing the evidence, a court
must in the ultimate analysis look at the evidence holistically in
order to determine whether
the guilt of the accused is proved beyond
reasonable doubt. This does not mean that the breaking down of the
evidence in its component
parts is not a useful aid to a proper
evaluation and understanding thereof. See S v Shilakwe
2012 (1) SACR
16
(SCA) at 20, para [11]. The Supreme Court of Appeal approved of
the following dictum :
“But in doing so, (breaking down
the evidence in its component parts) one must guard against a
tendency to focus too intently
upon the separate and individual part
of what is, after all, a mosaic of proof. Doubts about one aspect of
the evidence led in
the trial may arise when that aspect is viewed in
isolation. Those doubts may be set at rest when it is evaluated
again together
with all the other available evidence. That is not to
say that a broad and indulgent approach is appropriate when
evaluating evidence.
Far from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence.
But, once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one
may fail to see the wood from the trees.”
See S v Hadebe and others
1998 (1) SACR
422
(SCA) at 426f – h and S v Mbuli
2003 (1) SACR 97
(SCA) at
110, para [57].
[11] The same principles apply when an
alibi defence is relied upon by an accused. The acceptance of the
evidence on behalf of
the State cannot by itself be a sufficient
basis for rejecting the alibi evidence. Something more is required.
The evidence must
be considered in its totality. In order to convict
there must be no reasonable doubt that the evidence implicating the
accused
is true which can only be done if there is at the same time
no reasonable possibility that the evidence exculpating him is true.
See S v Van Aswegen
2001 (2) SACR 97
(SCA) at paras [7] & [8],
100f-101e and S v Liebenberg
2005 (2) SACR 355
(SCA) at 358h –
359e, paras [14] and [15]. The effect hereof is that once the trial
court accepts the evidence in support
of an accused’s alibi as
reasonably possibly true, it follows that the court should find that
there is a reasonable possibility
that the evidence led on behalf of
the State is mistaken or false.
[12] Bearing in mind the above the
correct approach is to consider the alibi in the light of the
totality of the evidence in the
case and the court’s impression
of the witnesses. See R v Hlongwane
1959 (3) SA 337
(A) at 341A. In
doing so, the trial court should remind itself that no onus rests on
an accused and that the State must prove
that the accused committed
the crime and it must therefore disprove the alibi.
[13] A court should particularly be
careful in assessing a confession or pointing out, which is usually
nothing but a confession
by conduct, where such confession is the
only evidence incriminating the accused. See: S v Mkwanzi
1966 (1)
SA 736
(A). This is a judgment pronounced decades before the
promulgation of our Constitution. Furthermore, impartial persons
should
take confessions, and pointings out for that matter. This was
emphasised decades ago in S v Mbele
1981 (2) SA 738
(A) at 743. The
Appeal Court warned explicitly that the persistent practice of the
police of not using impartial persons was in
complete disregard of
repeated expressions of disapproval by the courts. See also: Kruger
A, Hiemstra’s Criminal Procedure
24 – 58. In our present
constitutional dispensation courts should even be more wary to ensure
that the rights of accused
persons, especially the unsophisticated
and the poor, are not trampled upon. They are entitled to fair
trials and it is the duty
of the courts to give practical effect
thereto.
[14] The right to remain silent and its
effect on the disclosure of an alibi defence was thoroughly discussed
and considered in
S v Thebus
[2003] ZACC 12
;
2003 (6) SA 505
(CC) at 533 and further.
The CC, per Moseneke J, found that a distinction may properly be
made between an inference of guilt from
silence and a credibility
finding connected with the election of an accused person to remain
silent. It is clear that the late
disclosure of an alibi is one of
the factors to be taken into account in evaluating the evidence of
the alibi, although standing
alone, it does not justify an inference
of guilt. Secondly, such late disclosure is a factor to be taken
into consideration in
determining the weight to be placed on the
evidence of the alibi. The Court stated further:
“The failure to disclose an alibi
timeously is therefore not a neutral factor. It may have
consequences and can legitimately
be taken into account in evaluating
the evidence as a whole. In deciding what, if any, those
consequences are, it is relevant
to have regard to the evidence of
the accused, taken together with any explanation offered by her or
him for failing to disclose
the alibi timeously within the factual
context of the evidence as a whole.” At para 68, 537G.
EVALUATION OF THE COURT A QUO’S
JUDGMENT
[15] Several admissions were made and
recorded in terms of
section 220
of the
Criminal Procedure Act, 51 of
1977
. The following were admitted: (a) the identity of the deceased,
to wit Barend Hendrik Steyn, also known as Ben Steyn, (b) that
Dr
Ferreira conducted a medico-legal autopsy on the deceased on 8
November 2010, (c) the correctness of the facts and findings
in the
report of Dr Ferreira, (d) the cause of death, to wit blunt trauma to
the head and chest, (e) that the report may be handed
in as exhibit,
(f) the deceased did not incur any further injuries from the scene
until the autopsy was conducted, (g) the correctness
of the
photographs taken during the autopsy and at the scene.
[16] The pointing out by 1st appellant
admitted by the court a quo is attacked by Ms Smit on the basis that
it did not comply with
formal requirements, was not made freely and
voluntarily and without undue influence. It is also 1st appellant’s
latest
version that Capt Laux (“Laux”) of the Organised
Crime Unit in Bloemfontein wrote down his own version during the
alleged
pointing out and that the information contained in exhibit
“G” read with exhibit “E” was not
communicated
by him to Laux. Several photographs taken during the
pointing out are relied upon by the State. The admissibility of 1st
appellant’s
warning statement was also in contention during the
trial. It did not form part of the record, but was handed in from
the bar
by agreement. Three witnesses testified on behalf of the
State in the trial within a trial and 1st appellant testified in his
defence. Laux assisted in the pointing out as mentioned and Sergeant
Weyers of the Local Criminal Record Centre, responsible for
taking
photographs, accompanied him. They both testified as well as Warrant
Officer Thoko (“the IO”) who took down
the warning
statement. It is 1st appellant’s case that he was assaulted by
the IO and other policemen. Ms Smit was not
prepared to argue that
her client had been assaulted as alleged. Initially it was 1st
appellant’s case that the IO dictated
to him what he had to
convey to Laux during the pointing out. He also maintained that his
constitutional rights were not explained
to him by either the IO, or
Laux. Later on 1st appellant changed his version and testified that
Laux was the author of the version
contained in the pointing out
notes, exhibit “G”, and that he did not convey any of the
recorded information to him.
[17] Laux is the commander of the IO
and I must at this stage make certain remarks about the modus
operandi of the members of the
Organised Crime Unit in Bloemfontein
relating to taking down of confessions and pointings out. I find it
disturbing that an officer
of an investigating unit is utilised to
take down confessions and oversee pointings out by accused persons.
There is no statutory
prohibition, but the practice cannot and should
not be tolerated and/or recommended. In fact, the practice should be
abolished.
There can be no doubt that accused persons always try to
create the impression in trials within trials that although the
particular
officer taking down the confession did not assault them,
he was either fully aware of assaults and/or threats and/or have full
knowledge of the investigation and the facts established by then. It
is possible for a member of the same unit to obtain information
from
the docket, or the investigation officer, or first hand by visiting
the crime scene. It is highly likely that detectives
discuss their
cases with each other, especially in so-called priority cases and a
junior officer, in particular, will call upon
his commander or other
seniors for advice from time to time. Confessions should be taken
down by magistrates or officers from other
units. A pointing out
should be done under the auspices of an officer of a different unit.
There is no reason why the Station
Commander of any one of the police
stations in Bloemfontein could not be approached in this regard.
Suspicion may go a long way
to persuade a presiding officer to find
that the State has not proved its case beyond reasonable doubt. In
my experience, and
the facts in this case show that also, accused
persons’ versions as to alleged assaults and/or threats are
usually so exaggerated
and fanciful that it is often quite easy to
reject same as not reasonably possibly true and therefore false if
weighed with the
evidence of State witnesses who most of the time are
experienced police officers and well-groomed witnesses who are used
to be
subjected to cross-examination, often by inexperienced legal
representatives (which was not the case in casu). This being so
should
not be a carte blanche to the police to carry on with the
aforesaid practice.
[18] The 1st appellant’s
improbable version, rife with several contradictions, did not impress
the court a quo and it was
correctly found that his version was not
reasonably possibly true and therefore false. His version changed as
the trial proceeded
and eventually Laux was blamed for writing down
his own version and instructing the appellant from time to time to
point his finger
to various things to be photographed. Bearing in
mind the detailed version contained in the notes prepared by Laux
during the
pointing out, nobody could believe 1st appellant that Laux
made up the version and attributed that to 1st appellant. The
testimony
of the three policemen is far more probable than 1st
appellant’s version which the court a quo correctly rejected as
false.
Notwithstanding my criticism above I cannot find that the
pointing out in casu was admitted incorrectly. I am satisfied that
Laux
explained 1st appellant’s rights to him fully, that the
pointing out was done freely and voluntarily and without undue
influence.
It has been conceded that no assault took place as
alleged. It is not necessary to consider the admissibility of the
warning statement.
[19] It is necessary to deal with
further submissions made during Ms Smit’s argument. No
interpreter was used during the
pointing out, but Laux confirmed that
he and 1st appellant communicated well in Afrikaans. The record
confirms 1st appellant’s
knowledge of Afrikaans and he even
instructed his legal representative about the contents of the alleged
communication between
Laux and the son of the deceased. Although
accused persons should as far as possible be allowed to be consulted
in their mother
tongue, it remains a fact that our indigenous
languages have not developed fully in order to translate technical
aspects of the
law into them. One often hears interpreters using
Afrikaans or English when technical aspects are interpreted into one
of the
indigenous languages. I have in mind aspects such as
“evidence” or “getuienis” or “burden of
proof”
to mention a few.
[20] Ms Smit’s submission that
Laux should not have proceeded with the pointing out at the stage
when 1st appellant indicated
that he would like to apply for legal
aid is without substance and rejected based on the remainder of the
questionnaire, 1st appellant’s
willingness to proceed with the
pointing out and the totality of the evidence. It is pertinently
recorded that 1st appellant did
not wish to contact any person at
that stage. It could not be expected of Laux to refer 1st appellant
to the Legal Aid Board under
the prevailing circumstances. In any
event, when 1st appellant testified, this aspect was not even
canvassed with him at all,
his main concern being that Laux presented
his own version of the pointing out as that of 1st appellant. He
testified in vague
terms and in response to a leading question that
his rights were not fully explained to him, as if he was supposed to
know what
these rights entailed. He never said that he was unaware
of the consequences of his pointing out. Laux was corroborated by
Weyers,
the photographer. 1st appellant had no fresh injuries and
his version of the assault by the IO and others is denied by the IO.
Nothing was recorded by Laux in this regard and photographs taken of
1st appellant’s torso and back do not support the allegations
of an attack as described. 1st Appellant eventually testified that
he did not inform Laux that he had been assaulted.
[21] I trust that my discomfort and
warning relating to the aforesaid practice of the Organised Crime
Unit in Bloemfontein, and
probably applicable to other units in the
country as well, shall be heeded in future. The police must rather
rely on proper and
detailed investigations based on scientific and
experienced detective work, instead of confessions or pointings out
which may give
rise to suspicion, rightly or wrongly, especially when
no other incriminating evidence is available. I should not be
understood
to say that there is no place for this kind of evidence in
our criminal justice system and my warnings should be seen in proper
context.
[22] 2nd Appellant’s mother was a
single witness. The court a quo recognised this and was fully aware
of the principles to
be applied. Notwithstanding this it found that
Ms Ntelekoa was an honest and reliable witness. 2nd Appellant’s
attempts
to discredit his mother failed completely. In the process
he dented any credibility that he might have. Logic dictates that a
mother would rather try to protect her child, instead of producing
false evidence incriminating him dismally. The temporary change
of
her version halfway through cross-examination was immediately
rectified and I must say that it was apparent to me whilst reading
the record that she probably accepted that her son’s admission
was in reality a confession to the crimes committed although
this was
not communicated in so many words. During her cross-examination the
following leading question was put to her by Mr Reynecke:
“En u
dink hy was betrokke by Ben Steyn se dood?, Although aware of the
deceased’s death when she visited her son,
Ms Ntelekoa did not
before then try to intimate that her son actually admitted to be
involved in the death of the deceased. Her
reply to the question
which she repeated again was: “Ek dink nie hy het vir my gesê.”
When she was further cross-examined
she became confused and
testified that her son had informed her that he was involved in both
murders. Finally, in cross-examination
she reverted to her initial
version, i.e. that her son admitted to be involved, but that he never
said that he was involved in
the killing of the deceased or that he
assisted in the killing. When 2nd appellant communicated with his
mother, he did so freely
and voluntarily and without being unduly
influenced. He was in tears and apparently opened his heart to his
mother.
[23] This brings me to the conclusion
arrived at by the court a quo in respect of 2nd appellant’s
involvement in the crimes.
I refer to the authorities quoted.
Circumstantial evidence and the application thereof in order to
adjudicate a criminal case
is in essence based on logic. The State
does not have to prove the guilt of the accused beyond a shadow of a
doubt. There is
no reason to find that 2nd appellant’s
comment, in the context of the objective and/or proven facts, should
have been regarded
as anything else, but that he and his
co-perpetrator(s) committed the crimes. There was no reason to find
that he was, e.g. an
innocent bystander, or committed housebreaking
only but did not rob and murder, or that he was merely an accessory
after the fact
to mention three possibilities. It was for him to
tell the story if he was not guilty as charged, which he failed to
do. Mr Reynecke
submitted that Ms Ntelekoa’s evidence should
have been rejected as unreliable and if so, the inference drawn by
the court
a quo could obviously not have been drawn. He conceded in
argument before us that if we find that Ms Ntelekoa’s version
was correctly accepted as credible and reliable, the court a quo’s
finding shall not be disturbed. He conceded therefore,
correctly in
my view, that the only reasonable inference to be drawn from the
proven facts is that 2nd appellant was one of the
perpetrators who
broke into the deceased’s house with the intention to rob and
robbed and murdered him. The facts in casu
differ from those in
Steynberg where the Appeal Court found that the appellant ought to
have been convicted of culpable homicide
and not murdered. Here, the
context of the matter and the objective facts point to one reasonable
inference to be drawn only,
in the absence of an acceptable
explanation by 2nd appellant and taking into consideration his
untruthfulness, and that is that
he committed the crimes, albeit not
on his own.
[24] Having considered the reasoning of
the court a quo and the evidence presented to it, I am satisfied that
the court a quo committed
no misdirections. I have reconsidered and
re-evaluated the evidence and bearing in mind that courts of appeal
are slow to disturb
findings of credibility, I am satisfied that even
if it could be said that this court had the benefit of an overall
conspectus
of the full record and is in a better position to draw
inferences, the court a quo cannot be faulted. Having perused the
full
record and the reasons of the court a quo the dictum of the
Supreme Court of Appeal S v Monyane and Others loc cit, quoted above,
is apposite.
[25] The appellants had a
constitutional right to remain silent, but as mentioned in Thebus
supra, a trial court is entitled to
consider the alibi evidence also
in respect of the time disclosed. The court a quo did not make any
issue about the fact that
the alibi’s were disclosed at the
start of the trial only. I would have expected 1st appellant in
particular to immediately
establish the reason for the police’s
action on Saturday, the 6th November, the day after the murder, and
to inform them
there and then that he and his family members who were
all in attendance at that stage had been building a shack over the
past
two days and that he could not have been on the deceased’s
plot. The family members would be able to vouch for the truth
if
this was indeed so. If he was not given an opportunity to say
anything, or not even informed of the reason for removing him
from
his relatives, the relatives would surely investigate and communicate
with the police or investigating officer in order to
persuade them of
their relative’s innocence. In any event, if this is too high
an expectation, he should have given full
details of his alibi when
his warning statement was taken down or at the latest during his plea
explanation. His version according
to his plea explanation –
that he went with his brother to buy corrugated iron which they took
to the township – is
not only vague in the extreme, but was
contradicted in his evidence. They did not buy the material
according to his evidence.
He never mentioned in his plea
explanation, the actual reason for his alleged absence from the
deceased’s plot, to wit the
building of the shack over a period
of two consecutive days together with identified family members and
at an identified address
far away from the crime scene. His alibi
witness confirmed his version in numerous aspects, but in the light
of the totality of
the evidence the court a quo cannot be faulted for
dismissing it as false. In my view there was ample opportunity to
concoct a
version, although this was denied by the defence witness.
[26] 2nd Appellant is in a not too
different situation although he was not apprehended soon after the
commission of the crimes.
His mother visited him twice whilst he was
in custody in respect of a different offence. When informed that the
police were searching
for him following the murder of the deceased
and another person, it would be easy to request his mother to speak
to his wife and
the neighbours in order to establish whether they
supported his version and for her to communicate with the
investigating officer
at that early stage already. That would be the
case if he insisted to be innocent, but as the record reflects, he
admitted to
his mother his involvement at the deceased’s plot.
His estranged wife refused to testify on his behalf. Fact of the
matter
is that although there was no onus on 2nd appellant to prove
his alibi, he failed to lay a sufficient factual basis for the court
a quo to have accepted his version as reasonably possibly true in the
light of the totality of the evidence.
[27] In conclusion, I am satisfied that
the State has proved the guilt of appellants beyond reasonable doubt
and that the court
a quo arrived at the correct verdict.
[28] Consequently the following order
is issued;
The appeals of both appellants are
dismissed and their convictions are confirmed.
J.P. DAFFUE, J
I concur.
L.J. LEKALE, J
I concur.
M.D HINXA, AJ
On behalf of appellants: Ms L Smit
and Mr D Reynecke
Instructed by: Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of respondent: Adv C van
der Merwe
Instructed by:
Director of Public Prosecutions
BLOEMFONTEIN