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2015
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[2015] ZAFSHC 248
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Katadi v S (A237/2015) [2015] ZAFSHC 248 (10 December 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal number:
A237/2015
In
the matter between:
TAHLO
KATADI
Applicant
and
THE
STATE
Respondent
CORAM:
RAMPAI, J et REINDERS, AJ
HEARD
ON:
7 DECEMBER 2015
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
10 DECEMBER 2015
[1]
This is an appeal. The appellant was found guilty in the
district court and sentenced to an effective sentence of 18 months
imprisonment. He was aggrieved particularly by his conviction.
The respondent does not support the conviction.
[2]
An incident took place at Theunissen on 22 April 2015. The
actual scene of the incident was apparently at shaft number
4 of
Beatrix Gold Mine.
[3]
The appellant was arrested soon after the incident was reported.
Subsequent to his arrest he was criminally charged.
The first
charge was that he unlawfully and intentionally stole 14kg of copper
cables worth R920.36 the property or in the lawful
possession of
Sibanye Gold Mine or Mxolisi Menxe or Khayalethu Cenyane at
Theunissen on 22 April 2015. The prosecution also
alleged in
the charge sheet that he unlawfully and intentionally damaged a
booster motor valued at R13 514 the property of
or in the lawful
possession of Menxe at the same place and date. That was the
second charge preferred against him.
[4]
He first appeared on 23 April 2015. All along he has been in
custody. The appellant was tried in the Theunissen
District
Court. His trial commenced on 20 July 2015. Mr Morolong
appeared for the defence and Ms Eksteen for the prosecution.
He
pleaded not guilty to the charges. He explained that he was
employed as a shepherd; that he was on duty as such
on the day
of the incident; that he was herding his employer’s
livestock on his employer’s farm that morning;
that he
was arrested on that farm close to Steeldale Farm; that from
there he was taken to the mine where he was accused
of damaging mine
property and stealing copper. The accusations were false, he
said.
[5]
Notwithstanding his plea, the appellant was found guilty as charged
on 19 August 2015. On the same day he was sentenced
to 6 months
and 12 months imprisonment in connection with the first and the
second charges respectively. The sentences have
to run
consecutively. He was aggrieved.
[6]
The appellant unsuccessfully applied for leave to appeal in the
district court. He pursued the matter further by way of
a
petition. On 18 November 2015 this court, per Molemela, JP
et
Mohale, AJ granted him leave to appeal against his conviction.
[7]
The version of the state was narrated by two witnesses, namely:
Mr
Mxolisi Menxe, a security guard and Mr Richard Ngema, an electrician.
[8]
The version of the defence was also narrated by two witnesses,
namely:
Mr
Tahlo Katadi, the appellant or accused and Mr Thadi Barnard Thoabala,
the constable attached to the community service centre
at
Theunissen. In common parlace such a centre is called a police
station.
[9]
There were 13 grounds of appeal listed in the notice of appeal dated
2 September 2015. Among others, the appellant contended:
9.1
That the district magistrate erred in accepting the testimony of one
eye witness and in rejecting the version of the appellant;
9.2
That the court
a
quo
erred in finding that the appellant damaged the booster motor of the
water pump and that he was found in possession of copper cables
stolen from such motor;
9.3
That the court
a
quo
erred in failing to consider the probabilities and improbabilities in
the case as a whole;
9.4
That the court
a
quo
erred in concluding that the version of the appellant was not
reasonably true and
9.5
That the court
a
quo
also erred in finding that the state had proved the charges against
the appellant beyond reasonable doubt.
[10]
The primary issue in the court
a
quo
concerned the identity of the perpetrator. The residual
question relative to that issue that arose on appeal was whether
the
trial magistrate adopted the correct approach in evaluating the
merits and demerits of the prosecution’s case as against
the
merits and demerits of the defence case.
[11]
In
S
v Radebe
1991(2) SACR 166(T) at 182 Swart J remarked:
“
Die
staatsaak moet, met inagneming van die sterkhede en swakhede daarvan,
saam met die verdediging se saak, en dié se sterkhede
en
swakhede, in die weegskaal gegooi moet word.”
I
am in respectful agreement with that sound approach.
[12]
In
S
v Chabalala
2003(1) SACR 134 (SCA) another significant dimension was added.
The aforesaid approach was developed further. At para
[15]
Heher AJA, as he then was said:
“
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 into account 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.”
[13]
Where the balancing act favours the state, then and only then, can a
conviction follow. Conversely, where the balancing
act favours
the defence, the accused is entitled to his acquittal. Where
the scale appears to be evenly balanced, the same
principle applies.
The accused must be acquitted.
[14]
The correct approach requires that evidence should be evaluated to
ascertain whether it is reliable or unreliable. In
S
v Trainor
2003(1) SACR 35 (SCA) at para [9].
“
A
conspectus of all the evidence is required. Evidence that was
reliable should be weight up alongside such evidence as may
be found
to be false.
Independently
verifiable evidence
,
if any, should be weighed to see if it supports any of the evidence
tendered. In considering whether evidence is reliable,
the
quality of that evidence must of necessity be evaluated, as must
corroborative evidence, if any. Evidence, of course, must
be
evaluated
against
the onus on any particular issue
or in respect of the case in its entirety.”
[15]
The headnote of the decision in
S
v Jochems
1991(1) SACR 208(A) reads as follows:
“
In
considering whether the state has discharged the onus of proof
resting on it, the trial court is obliged to consider the evidence
as
a whole
and
such defects as there might be in the evidence of the accused do not
materially assist the state in discharging the onus if the
evidence
of the state is open to serious criticism.”
I
share those sentiments but
I
underlined the preposition “and”. Once it is
replaced with the preposition “but” the headnote reads
a
whole lot better. I think that my preferred preposition accords
well with the good
intentions
of Milne JA.
[16]
Now I turn to the version of the state. The first state witness
was Mr Menxe. His evidence may be condensed as
follows:
He was designated as a priority crime investigator. In common
parlace the witness was a security guard deployed
on the mine.
He was in the employ of Sibanye Protection Services. He
followed up a report he received from one Mr Julius
Heinz. He
and a colleague of his then proceeded to the galley box number 2.
At the corner of that galley box he saw
an unknown man carrying a
green handbag. They drove towards him. The man dropped
the bag and instantly took to flight
when he saw them coming.
They pursued him, arrested him and took him back to the bag he had
dropped. Inside the bag
they found copper cables. From
there they took the fugitive to the security officers. I
suppose the witness meant security
offices. An electrician was
then called. He inspected the copper cables. He
ascertained that they were copper
windings and that they matched
those of the booster motor. They weighed the copper and
established that its mass was 14kg
and its value R920.36. The
suspect was present during that process. He identified the
suspect as the appellant.
The electrician was a certain Mr
Richard Ngema.
[17]
At the heart of the dispute or issue was the identity of the
culprit. It is trite that the evidence of identity is
approached
and treated by the courts with caution. Similarly
the evidence of a single witness is also treated with caution.
Where,
as in this case, a single witness testified about the identity
of the alleged culprit, which identity was in dispute, a trial court
has to be doubly cautious.
[18]
The question of identity was disputed from the outset of the trial.
In his plea-explanation the appellant pertinently
averred that he was
not the culprit; that he was wrongly accused; and that he
was not on the mine where the booster
motor was damaged and its
copper windings stolen. On the contrary he averred, through the
explanation of his plea, that he
was on the farm where he was herding
his employer’s animals at the time of his surruptious arrest.
[19]
It was clear from Mr Menxe’s testimony that he was not alone
when the appellant was arrested. Although he never
named his
colleague, there was reason to believe that one Khayalethu Cenyane
was his companion. The gentlemen’s name
featured in the
charge sheet in respect of the first charge. He must have
witnessed the events prior to the appellant’s
arrest because he
was part of the live action, just as Mr Menxe was. Yet the
state failed to call him in order to have Mr
Menxe corroborated.
Mr Cenyane could easily have done so. I have to qualify this last
comment. He could easily have
done if Mr Menxe’s
testimony was true. There was absolutely no explanation given
as to why such an important eye witness
was not called.
Moreover, the prosecution did not avail the witness to the defence
after the close of the state case.
Those were curious aspects
of the prosecutor’s conduct.
[20]
In those circumstances it had to be assumed that Mr Cenyane was
available to testify. Therefore, an inference adverse
to the
state case must be drawn for the prosecution’s failure to call
him. Failure to call a witness has adverse consequences
(See
S
v Texeira
1980 (3) SA 755
(AD) at 763 G – 764 B.
[21]
During the course of delivering judgment, the district magistrate
said the following about Mr Menxe:
“
And
he is not a single witness, because the accused admit (sic) a lot of
the evidence of the state witnesses.”
See
page 68:12-13 of the record.
The
magistrate went a step further to say:
“
So
the state did not really call a single witness. There is a lot
of aspects was (sic) confirmed.”
See
page 68: 20-22 record.
[22]
The a foregoing quotations clearly demonstrated that the district
magistrate did not evaluate Mr Menxe as a single witness
as he was
required to do. The law required that the evidence of that
particular witness be treated with caution. The
district
magistrate obviously misapplied the cautionary rule as it applies to
a single witness. In my view the district magistrate
materially
erred in that regard.
[23]
The trial magistrate implicitly acknowledged that there were serious
shortcomings in the evidence of the single witness.
That much
was apparent from the aforesaid two quotations. He appreciated
that some corroborative evidence was necessary.
However, he
reasoned that the shortcomings in the evidence of the single witness
were effectively remedied by a lot of aspects
admitted or confirmed
by the appellant. No such redeeming admissions on material
aspects were spelt out. On my own,
I could find none.
There was a dispute as to precisely where the appellant was
arrested. According to him he was confronted
on the farm and
not on the mine. The dispute raised the question whether or not
there was a physical boundary, for instance
a fence, between the mine
and the farm. According to him he was not carrying any bag but
a stick. According to him
he did not run away at any stage
immediately prior to his arrest. Those were all material
considerations. They
were at the heart of the identity
dispute. The appellant did not admit those material aspects.
The onus was on the
state to prove them by means of credible and
reliable evidence of identifying witnesses.
[24]
Whatever defects there might have been in the appellant’s
evidence or that of his witness could not materially have assisted
the state in discharging the onus –
S
v Jockerns
,
supra
.
Whatever merits there might have been in the state case were
materially weakened by its failure to call Mr Cenyane.
It must
be born in mind that Mr Menxe admitted during cross examination that
the appellant was arrested in an open field on the
farm.
[25]
However hard I tried, I could find no admission by the appellant that
so materially supported the version of Mr Menxe as to
render the
calling of Mr Cenyane unnecessary. The version of the single
witness and that of the appellant were poles apart.
They were
diametrically opposed. Because they were, corroborative
evidence was required to support the disputed version of
the state.
In my view the district magistrate materially erred in finding that
the evidence of the appellant supported that
of the single
prosecution witness in respect of a lot of aspects. The failure
to call that witness was, therefore, one of
the weaknesses in the
prosecution case. However, it was not the only weakness.
There were others. I proceed to deal
with them below. The
witness’ evidence was open to serious criticism.
S
v Jochems
,
supra
.
[26]
In the first place, no one, not even Mr Menxe, saw the appellant
damaging the booster motor of the water-pump. It appeared
that
a certain Mr Heinz saw the damage first. In what circumstances
he discovered the damage, we were not told and we shall
never know.
He too was not called to testify. By the look of things, he saw
non-one in the vicinity of the galley box
where the water pump was.
Shortly after his discovery Mr Menxe burst on the scene and
immediately saw the appellant carrying
a suspicious plastic bag.
[27]
Why Mr Heinz did not earlier see what Mr Menxe shortly saw, we do not
know. I guess he did not see the appellant in the
vicinity of
the galley box. Perhaps that explains why he was not called.
The appellant was never taken to the maliciously
damaged water-pump.
On the strength of Mr Ngema’s evidence that the copper windings
in the bag matched the copper windings
in the booster motor, the
court inferentially reasoned that the appellant was, beyond
reasonable doubt, proven to have maliciously
damaged the property of
the mine. There was no clear evidence that the electrician
actually examined the copper windings
of the booster motor.
Moreover, the element of malice, in other words malicious intent, was
hardly averred in the charge
sheet.
[28]
In the second place, during cross examination Mr Menxe admitted that
the booster motor could not have been stripped by bare
hands and that
tools must have been used to strip it and to remove its copper
windings. It was undisputed that no tools whatsoever
were found
in the bag or in the appellant’s possession at the time of his
arrest. That evidence was a material consideration.
On
the one hand it tended to weaken the prosecution case, based on
circumstantial evidence, that he was beyond reasonable doubt
responsible for the malicious damage. On the other hand it
tended to fortify the appellant’s defence that he was not
involved in the alleged malicious actions. It
prima
facie
tended to be indicative of his innocence
S
v Chabalala
,
supra
.
[29]
In the third place, the charge sheet was not a model of good
draftsmanship. The proforma form was not properly completed.
The appellant was not sufficiently informed about the second charge.
It was alleged that Mr Menxe was the owner or lawful
possessor of the
booster motor allegedly damaged by the appella
nt
at Theunissen on 22 April 2015. See page 78 of the record.
However,
without applying to the court to have the charge sheet amended, the
prosecutor casually amplified the charge sheet in respect
of the
second charge she said:
“…
malicious
injury (sic) to property, the accused is guilty of malicious injury
(sic) to property in that upon or about the 22
nd
of April 2015 and at or near Theunissen in the district, division of
Theunissen the accused did unlawfully and intentionally damage
a
booster pump to the value of R30,540.00, the property or in the
lawful possession of Mr Menxe and also Sibanyi Gold Mine with
the
intention to injure (sic) the said property.”
[30]
As can be seen, Sibanye Gold Mine was then added as one of the
possible owners or lawful possessors of the booster motor.
However, there was no evidence about such an enterprise. I have
reservation as to whether there existed a mine called Sibanye
Gold
Mine. Perhaps it did, I am not entirely certain. The
trial magistrate found that Mr Menxe gave evidence that he
worked at
shaft number 4 of Beatrix. The finding was not supported by
evidence. Although I am uncertain about the existence
of
Sibanye Gold Mine, I am certain that Mr Menxe evidence was that he
worked for a business enterprise called Sibanye Protection
Services.
It may well be that Beatrix Gold Mine is one and the same entity as
Sibanye Gold Mine or Sibanye Protection Services.
I do not
know. The question is how are we, sitting on appeal, to know if
there was no evidence led on those aspects.
I have earlier
remarked that the specific intent of malice was not alleged.
[31]
In the fourth place, the 14kg mass of the copper windings was also a
material consideration. It appeared to me that the
significance
of the evidence was not appreciated. No mention of the mass was
made in the judgment. An object of that
mass is quite heavy for
an average man to carry. In my experience as a shopper I found
it to be physically demanding to carry
a 5kg bag of sugar over a very
short distance from a shelve to a till in a supermarket by hand.
I would imagine, therefore,
that a man of average physical strength
would find it very difficult to carry, by hand a 10kg let alone 14kg
object over any distance
of significant length. The evidence
concerning the mass of the copper somehow tended to favour the
version of the appellant.
It seemed to me that he would not
have been able to carry such a massively heavy load by a single or
even by both hands.
The mass of the copper windings was an
independently verifiable evidence that should have been considered in
order to see if it
fortified the evidence tendered by the prosecution
or the defence.
S
v Trainor
,
supra
.
It was lamentable to realize that such objectively reliable evidence
was not considered. It would, therefore, appear
that evidence
which appeared to strengthen the merits of the appellants case and
necessarily weakened the state case, was not taken
into account.
The approach adopted was contrary to the decision in
S
v Radebe
,
supra
.
[32]
In the fifth place, Mr Menxe’s evidence was that the appellant
must have stripped the booster motor at night. If
that was
indeed the case, then the appellant would probably had done all he
could to remove his ill-gotten loot at night still.
It was
improbable that he would foolishly have waited to do so during
daytime when the risk of been spotted and caught was so much
greater
than during night-time. In my view it was highly improbable
that a man who chose to operate under cover of darkness,
in order to
reduce the risk, would defeat that very purpose by taking the tools
away but leaving the loot behind on the scene of
the crime in order
to remove it during daytime.
[33]
To the extent that the district magistrate did not take into account
these probabilities and improbabilities on both sides
he committed a
misdirection on a question of law.
S
v Chabalala
,
supra
.
That being the case, it would not have been decided with conviction,
that all the elements that pointed either to the guilt
or innocence
of the appellant as an accused were evenly weighed up. Seeing
that some important considerations favourable
to the appellant were
left out of the equation, it could not have been correctly decided
that the balancing scale so heavily tilted
in favour of the state as
to exclude any reasonable doubt about the guilt of the appellant.
Therefore, doubt must have existed
as to whether the appellant had
maliciously damaged the motor and unlawfully stolen its copper
windings.
[34]
In the six place, I want to deal with the appellant’s attire.
It was put to Mr Menxe, by the appellant’s
attorney, that at
the time of his arrest, the appellant was wearing a blanket;
that he was carrying a stick and that he had
a shepherd’s watch
dog with him. The response of the witness was that he saw none
of those. I guess he would
probably have given the same answer
had he been asked if he had seen the sheep. Since the witness
did not really deny the
substance of what was put to him, the
appellant’s version on those points had to prevail. If it
is accepted, and I
think it should, that there was a watchdog and
that there were sheep in the open veld where the appellant was
arrested, then the
evidence of the state witness becomes suspect.
His evidence that he did not see the dog, the blanket and the stick
indicated
that his powers of observation were questionable.
These were unfavourable features of his evidence. The evidence
of
identifying witness must be shown to have been reliable
S
v Mthetwa
1972 (3) SA 766
(A) at 768 A – D. The witness failed the
test. His version was open to serious doubts.
[35]
The defence witness, Constable Thoabala, though not a good witness,
corroborated the version of the appellant. Not only
did he
corroborate the appellant version but he added a material aspect to
it. He added that the appellant was wearing gumboots.
Therefore, the appellant was dressed in a typically cultural way of a
Mosotho shepherd from Lesotho.
[36]
I find it difficult to imagine a shepherd wearing gumboots and a
blanket trying to run away in order to escape arrest.
That is
one thing. The other is this: Stealth has always been a feature
of stealing. A man on a criminal mission to
steal is unlikely
to have a watch dog on his side. This is the other thing.
These considerations tend to favour the
appellant’s version
that he was on a farm, herding sheep and not on the mine stealing
property.
[37]
The version of the appellant was that he was employed as a shepherd;
that his employer owned a farm adjacent to the mine;
that he
was herding a flock of sheep on the day in question; that two
security guards from the mine approached him on the
farm; that
he refused to get into their vehicle; that they forcefully took
him away from the farm to the mine;
that there he was accused
of stealing copper cables and that no such stolen property or damage
was shown to him. It later
became known that the farm in
question was known as Van Glen Ross.
[38]
The district magistrate rejected the aforesaid evidence of the
appellant. He found that it was not reasonably true.
Among other grounds of the rejection, the district magistrate
believed that Mr Menxe’s evidence was true because the witness
previously appeared in that court several times. Such an
approach was incorrect, with respect. The district magistrate
was required to consider the evidence of that witness within the
context of the peculiar factual matrix of this particular case
in
isolation from the previous good impressions the witness had
previously created in unrelated cases.
[39]
Witnesses do frequently appear before the same judicial officers.
In those circumstances, judicial officers may form
good or bad
impressions about such witnesses at times. It is natural to
take such previous impressions into account.
But it must be
borne in mind that it is subjective judgment and the result of a
number of factors whose varying weight depends
on the peculiar
circumstances of a particular case. It is an unsafe game to
routinely play – Credibility of Witness
(1985) 102 SALJ 32.
It was clear and obvious, therefore, that the version of the
appellant was not rejected on the grounds of its inherent demerits
but rather on the grounds, among others, that the appellant came up
against a witness very well known to the court and about whom
the
trial magistrate had formed favourable previous impressions.
The perception was created that it was the trial magistrate
previous
knowledge of the witness, and related favourable impressions that
made him believe the witness and disbelieve the appellant.
See
R
v L
1955
(1) SA 575
(T) for a contrary viewpoint.
What
was required of the state was to establish, that the version of the
appellant was not reasonably true. That, the state
failed to
do, in my view.
[40]
During the course of the judgment the district magistrate said the
following about the appellant:
“
You
did not even try to explain to the court why you say it could not be
you.”
By
so saying the district magistrate erroneously shifted from the state
to the accused the onus which rested on the state.
“
It
is trite that there is no obligation upon an accused person, where
the State bears the onus, 'to convince the court'. If his
version is
reasonably possibly true he is entitled to his acquittal even though
his explanation is improbable. A court is not entitled
to convict
unless it is satisfied not only that the explanation is improbable
but that beyond reasonable doubt it is false. It
is permissible to
look at the probabilities of the case to determine whether the
accused's version is reasonably possibly true,
but whether one
believes him is not the test. As pointed out in many judgments, the
test is whether there is a reasonable possibility
that the accused's
evidence may be true.”
S
v V
2000
(1) SACR 453
(SCA) at 455 a-c.
The
appellant was not obliged by law to call his employer as a witness.
His decision not to call his employer could not be
correctly held
against him as it was. The onus remained on the state
throughout the entire duration of the trial to prove
the guilt of the
appellant beyond reasonable doubt.
S
v Ntsele
1998 (2) SACR (SCA) (AD) at 182 B-D and
S
v V
,
supra.
[41]
It follows, therefore, that the district magistrate erred in a number
of respects on matters of fact and on questions of law.
I
would, therefore, uphold the appeal on the grounds as set out in
paragraph 9,
supra
.
[42]
Accordingly I make the following order
42.1
The appeal is upheld;
42.2
The conviction in respect of each of the two charges is set aside and
it is substituted with the order as
set out below;
42.3
The accused is found not guilty in respect of both charges.
______________
M.H.
RAMPAI, J
I
concur
_______________
C.
REINDERS, AJ
On
behalf of the appellant:
Adv. J.S. Makhene
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the defendant:
Adv. S. Chalale
Instructed
by:
Office
of the Director: Public Prosecutions
BLOEMFONTEIN
/PC