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[2015] ZAFSHC 107
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Makhetha v S (A279/2014) [2015] ZAFSHC 107 (14 May 2015)
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IN
HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No. : A279/2014
In
the matter between:-
PHILLIP
RANTSOLO MAKHETHA
and
THE
STATE
CORAM:
MOCUMIE,
AJP
et
EBRAHIM, J
JUDGMENT
BY:
MOCUMIE,
AJP
HEARD
ON:
4 MAY
2015
DELIVERED
ON
:
14
MAY 2015
MOCUMIE,
AJP
[1]
This appeal arises from events which occurred during the night of 13
June 2008 during which M. L. K. (the deceased) was shot
and killed.
As a result, appellant appeared in the regional court, Botshabelo, on
one count of murder. At the end of the trial
the regional magistrate,
Ms Khuduga, convicted him of murder. On 8 September 2011, he was
sentenced to undergo fifteen years’
imprisonment. He appealed
unsuccessfully to the trial court. This appeal is with the leave of
this court which was granted on 1
December 2014.
[2]
The main attack against the judgment and order of the trial court is
that the trial court erred in convicting the appellant
of murder as
the State had failed to prove its case beyond reasonable doubt
considering appellant’s version that the deceased
was attacking
him, he acted in self-defence to prevent the deceased from robbing
him of his firearm. During the struggle for the
firearm the deceased
was shot and killed.
[3]
The State led evidence of two witnesses; Kgotsimang Pule Khalake
(Khalake) and Malebohang Susan Choute (Choute) who were at
the church
service where this incident happened. Appellant testified in
his own defence and called one witness, Moleko Paulus
Sekhalo
(Sekhalo) to testify on his behalf.
[4]
Khalake testified that he was with the deceased at a church service
in Botshabelo township on 2 March 2012.He, the deceased
and Itumeleng
assisted women who were preparing food for the congregants by
chopping wood for the fire. When they were done with
their chore,
they went into a shack in the same premises but at the back of the
main house to play video games. Not long after
they went into the
shack, deceased left them behind in the shack to eat as the food was
apparently ready. Shortly thereafter,
just
as deceased had closed the door
,
he heard a sound resembling a gunshot and opened the door to see what
was happening. He found the deceased lying on the ground
next to the
shack. Appellant was next to the deceased shaking him from side to
side. When he asked appellant what had he done,
appellant said ‘I
got him’ and left the premises.
[5]
Choute testified that she was attending church on the night in
question. She knew both appellant and deceased and both were
present
in church on the night in question. When the service was about to end
it was reported to her that someone had been shot.
She went to
investigate and found the deceased lying on the ground closer to the
outside of the tent, shot. She did not see who
shot the deceased. She
did not find appellant on the scene.
[6]
According to the post mortem report handed in as exhibit C the
deceased died as a result of a single gunshot wound to the head.
Photographs of the scene of crime were handed in as exhibit D.
[7]
Appellant testified that on the night in question he was home. After
he lit the stove to prepare food, he left home to go to
a nearby shop
to buy bread. On his way to the shop he came across a group of five
to six men who, for no apparent reason, pelted
him with stones. He
thought that those people wanted to rob him and for his safety he
fled into the premises where the church service
was going on. After
some few minutes, he attempted to leave the premises, but then he saw
the group of people, he was convinced
it was the same group that had
attacked him earlier on, standing at the gate of this premises he had
fled into.
[8]
He retreated into the tent where the church service was going on.
After some few minutes, just as the service about to
end, he decided
to leave the premises through the back gate to continue to go to the
shop to buy bread. As he was walking out of
the premises an unknown
person came from the direction of the tent, bumped into him, reached
for his waist where he had his firearm
in its holster. This person
got hold of his firearm which was now out of the holster. The two
wrestled over the possession of the
firearm, a shot went off and the
unknown person fell to the ground fatally wounded. He pulled his
firearm from underneath this
person and ran to his parental home to
report the incident. Along the way he phoned his brothers to relate
what had happened. His
two brothers and Sekhalo found him at his
parental home and accompanied him to the police station to report the
incident. He was
detained for the murder of the deceased.
[9]
The main issue before us is whether, in the absence of direct
evidence, the only reasonable conclusion the trial court could
draw
was that the appellant intentionally killed the deceased and did not
act in self-defence as he alleged.
[10]
In
S
v Monyane and Others
[1]
the Supreme Court of Appeal stated that:
“
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 show 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)
”
.
[2]
[11]
The legal principles applicable as expounded in
R
v Blom
[3]
when dealing with circumstantial evidence, as in this case, are well
known and need no repeat. Khalake did not witness the actual
shooting; he found appellant next to the deceased, shaking him, thus
the inference drawn by the trial court that appellant shot
and killed
the deceased. As a single witness his evidence must be credible and
satisfactory in all material respects
[4]
and it must be approached with caution.
[5]
[12]
The trial court in its analysis of the evidence came to the
conclusion that appellant intentionally killed the deceased on
the
basis that appellant was vague on certain parts of his evidence; that
there was no reason for Khalake to falsely implicate
him; the
appellant tried to mislead it when he testified that the deceased was
less than three meters from the door of the tent
when the struggle
ensued between them which ended up with the deceased fatally shot,
instead of just outside the door of the shack
as Khalake testified.
[13]
The trial court however disregarded the contradictions between the
two state witnesses on the material aspect of where the
deceased was
found after the shooting in relation to the shack and the tent on one
hand; and on the other hand the corroboration
between appellant and
Choute that the deceased was lying close to the tent than to the
shack. It also relied on its finding that
Khalake did not know the
deceased prior to this incident and thus had no reason to falsely
implicate him. This is entirely contrary
to what is recorded on the
transcribed record that Khalake in fact knew the deceased. He
described how he knew the deceased as
Itumeleng’s friend some
days before this night in issue. The trial court further watered down
the serious contradiction in
the evidence of Khalake with regards to
the time lapse between the time the deceased had left the shack to go
and eat and when
Khalake heard what sounded like a gunshot. Initially
Khalake said the time lapse was four minutes. He later changed the
four minutes
to four seconds. Then later to less than five minutes.
This Mr Van der Merwe argued was a result of Khalake not being
sophisticated
nor conscious of the time difference but knew that the
gunshot went off immediately after the deceased left the shack. This,
however,
as Mr Dryer correctly argued, flew in the face of what
Khalake testified earlier on. In his evidence in chief Khalake said
that
after the deceased had left the shack, Khalake, he continued to
play the game on the computer. This could have been four to five
minutes give credence to the submission by Mr Dreyer that as he
initially stated in his evidence in chief which would have given
the
deceased sufficient opportunity to either attempt to rob appellant
alone or as part of a group. The State failed to clarify
this aspect.
[14]
The State, as Mr Van Merwe correctly lamented, also failed to take
appellant to task to explain how the deceased was shot in
the head if
the firearm was at all times in his hands during the struggle which
ensued between the two over its possession. There
are some aspects of
appellant’s version which do not make sense which if followed
through proper cross examination would
have exposed him to be either
lying or covering up to avoid a conviction but it is not for the
trial court to put the pieces together
and totally ignore material
contradiction and improbable in order to strengthen the case for the
State. It is the State that is
bound to correct such contradictions
and or improbabilities which may be fatal to its case; because the
onus rests on it to prove
its case beyond reasonable doubt. Mere
preponderance of probabilities is not enough
[6]
.
[15]
Although there was no link between the deceased and the earlier
attack on appellant that night, and there may be
a suspicion that he
was avenging himself by killing the deceased, appellant stuck to his
version as set out in his plea explanation
and as put to the
witnesses. He did not contradict himself. Even if the suspicion
remains that he did not act in self-defence,
he cannot be convicted
on suspicion alone. The State must prove its case beyond reasonable
doubt. An accused does not bear any
onus to prove his innocence.
Whether one subjectively believes him or her is not the test. The
test is whether there is a reasonable
possibility that his evidence
may be true.
[7]
In this case in
the absence of direct evidence and sufficient
facta
probanda
from which the only inference which she trial court drew, his
evidence may be true. For these reasons, the appeal must
succeed.
[16]
In the result the following order is granted.
ORDER
1.
The appeal
is upheld.
2.
The order
of the court a quo is set aside and replaced with the following:
‘
The
appellant’s conviction and the sentence imposed are set aside.’
_________________
C.
MOCUMIE, AJP
I
concur.
_________________
S. EBRAHIM, J
On
behalf of the applicant: Adv. Van der Merwe
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
On
behalf of the respondent:
Adv. Dreyer
Instructed
by:
Kramer,
Weihmann & Joubert Inc
BLOEMFONTEIN
[1]
S v Monyane and Others
2008(1) SACR 543 (SCA) para [15].
[2]
In
S
v Naidoo & others
[2]
the
Supreme Court of Appeal reiterated this principle as follows:‘
In
the final analysis, a Court of appeal does not overturn a trial
Court’s findings of fact unless they are shown to be
vitiated
by material misdirection or are shown by the record to be wrong.
’
[3]
R v Blom
1939
AD 188.
[4]
See section 208 of the Criminal
Procedure Act 51 of 1977.See also S v Gentle
2005 (1) SACR 420
(SCA)
para 220G;
S v Olawale
2010(1) All SA 451 (SCA).
[5]
See S
v
Sauls
1981 (3) SA 172
(A).
[6]
S v Shackell
2001
(2) SACR 185
(SCA) para 30.
[7]
S
v Shackell
2001 (2) SACR 185
(SCA) at
194H-H;
S v V
2000 (1) SACR 453
(SCA) at 455A-B.