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2015
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[2015] ZAECMHC 41
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Motsetse and Another v S (55/02) [2015] ZAECMHC 41 (19 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MTHATHA
Case
no. 55/02
In
the matter between:
THABISO
MOTSETSE
...................................................................................................
First
Appellant
XOLANI
CHARLES
NGCOBO
.................................................................................
Second
Appellant
and
THE
STATE
............................................................................................................................
Respondent
APPEAL JUDGMENT
Stretch
J:
1.
The appellants were accused nos 1 and 2 in
the court
a quo.
They
were initially charged together with accused nos 3 and 4, but the
charges were withdrawn against the third accused (“Malashe”)
and he became a state witness who was warned in terms of section 204
of the Criminal Procedure Act 51 of 1977 (“the Act”).
2.
The two appellants, together with the
fourth accused, were indicted and convicted on charges of murder,
robbery with aggravating
circumstances, and possession of arms and
ammunition. On 3 September 2002 they were sentenced by the
court
a quo
to life imprisonment for the murder, 15 years for the robbery and
four years for the possession of the arms and ammunition, the
cumulative effect being life together with 19 years’
imprisonment.
Delay
of the appeal
3.
There has been an inordinate lapse of time
between the sentencing of the appellants and the finalisation of this
appeal.
4.
It appears from their application
for condonation (which was unopposed) that the appellants
unsuccessfully applied for legal aid
to prosecute applications for
leave to appeal. Thereafter funds were raised for them to brief
an attorney. The attorney
was faced with a number of systemic
delays in obtaining a transcript of the trial record, culminating in
the first appellant addressing
a representation to the Judge
President of this Division, the Judicial Services Commission and the
Minister of Justice and Constitutional
Development, on 25 August
2009, complaining that he had been trying to have the judgment signed
for seven years. As a result
of the intervention of the Judge
President, leave to appeal against the convictions and the sentences
imposed was granted on 27
July 2012. Thereafter further delay
was occasioned by the fact that portions of the recorded evidence
were missing in the
transcript, and had to be reconstructed. The
record of an alleged confession made by the second appellant, is
still missing
and
cannot be traced.
The
grounds of appeal
5.
The appellants’ grounds of appeal on
conviction are the following:
(a)
The evidence of the “accomplice
witnesses” was inadequate.
(b)
The chain evidence with respect to the arm
used in the murder is incomplete.
(c)
The second appellant’s pointing out
and confession should have been ruled inadmissible.
(d)
The evidence of the appellants, of accused
no. 4 and that of the alibi witnesses ought to have been found to be
reasonably, possibly
true.
(e)
The amendment by the trial judge of the
indictment by introducing a further firearm after the close of the
state’s case was
prejudicial to the appellants.
(f)
Counsel who initially represented accused
no. 3 (who became a state witness) ought to have discontinued
representing the appellants
and accused no. 4 as he was thereafter
presented with a conflict of interest.
6.
As for sentence, it has been contended that
the appellants were not advised of the provisions of section 51 of
the Act, and that
their cases presented substantial and compelling
circumstances for deviating from the prescribed discretionary minimum
sentence
provisions, which circumstances the trial judge overlooked.
The respondent’s
position
7.
Counsel for the respondent has sought not
to defend the judgment of the trial court. In this regard it is
contended that:
(a)
The trial judge frequently descended into
the arena in particular to defend serious weaknesses in the case of
the accomplice witness,
without which information there would have
been no direct evidence for the state.
(b)
The prosecution witnesses David Bam,
Bandile Mbanga and Siphiwo Gcelu were on their own versions
accomplices.
As such their evidence ought to have been analysed with
caution. The trial court labelled them as independent witnesses.
This was a misdirection.
(c)
The evidence regarding the so-called
pointing out and confession made by the second appellant is so
fraught with difficulties, that
counsel for the state was not in a
position to press for the admission thereof. It is contended
that the same applied to
the so-called independent witnesses who
testified to fortify the chain evidence (such as it was) available to
the state.
8.
In a nutshell, the respondent submitted
that it would abide the decision of this court. Differently
put, it was clear during
argument before us that the respondent was
conceding that the convictions could not stand.
9.
Whilst I do not necessarily agree with all
of the respondent’s reasons for making this concession (for
example that the prosecution
witnesses Mbanga and Gcelu were
accomplices
on their own versions), I am of the
view that the concession is properly made.
10.
It is evident that there lies some merit in
all of the grounds of appeal which I have already mentioned and I do
not intend traversing
each of these in detail. It is however
necessary, to mention just a few issues which I deem to be have been
fatal to the case for
the prosecution, and which seemed to have been
overlooked by the trial court to the extent that such oversight had
the effect of
vitiating the convictions altogether.
Outline
of the evidence
11.
At about 6pm on 8 November 2001 attorney
Ellis Nodada (“the deceased”) was murdered and robbed of
his Audi A4 at gunpoint
in the driveway of his home in Southernwood,
Mthatha. The car was found abandoned the next day.
12.
The appellants and two others were
arrested. As I have mentioned, the erstwhile third accused
(“Malashe”) turned
state witness. The remaining
accused pleaded not guilty, raising alibis in their defence. Unless
otherwise stated, they will
collectively be referred to as the
accused.
13.
Malashe described how he and the accused
were on their way to town on 8 November when they spotted the
deceased in his car. It
was suggested that the car should be
hijacked and he was handed a firearm to defend himself. The
accused were all already
armed. When the deceased turned into
his driveway, he and the appellants ran towards the residences. The
first appellant
was leading. As he got closer, he heard a bang
and a male person screaming. He became frightened and fled.
14.
While still in the area, he came across
Mbanga who gave him a lift to a petrol station in town where he had
arranged to meet Bam
.
They proceeded
back to Southernwood to the home of Bam’s cousins. Shortly
thereafter the fourth accused phoned and said
that they should meet.
He and Bam met up with the accused in a street in Southernwood.
They
were in a white Polo motor-vehicle. They reported that they had
overpowered the deceased, but that they had abandoned
the car as it
was damaged. They told him to return the firearm which he had
been given.
15.
He saw accused no. 4 the next day and the
two appellants about two weeks later in Mthatha. He was
arrested and released on
7 May 2002. He made a statement to the
police on 5 May 2002 as he was anxious to come clean and get the
whole incident out
of his system.
16.
Malashe’s friend Mbanga confirmed
that he came across Malashe running towards him on 8 November. He
asked what the matter
was, to which Malashe replied “ijampile”
which roughly translated means that whatever he had been trying to do
had
been unsuccessful. He gave Malashe a lift. Malashe phoned
Bam who came to fetch him.
17.
Bam, who confirmed that Malashe had phoned
him, testified that earlier on that same day the accused and Malashe
had been at the
fourth accused’s house where a mechanic by the
name of Siphiwo Gcelu also lived. He also confirmed that he and
Malashe
met up with the accused after
the
fourth
accused
had phoned Malashe
, but said that he
left Malashe behind with the accused, and only met up with him later,
upon which Malashe told him “the
full story”. He
saw the appellants on two separate occasions thereafter.
18.
During December 2001
,
he says,
the fourth accused asked
Bam to transport certain items from his house to Bam’s house.
Included in
these there was a firearm.
During
April/May 2002 the police asked Bam about
the
firearm, but he denied all knowledge
thereof. During June this questioning was repeated, as a result
of which Bam referred
the police to Malashe. During July, Bam
explained to the police that when he had transported the fourth
accused’s items
there was a firearm in one of the boxes. When
he was arrested later on that month, he arranged for one Mbulelo and
one Mfolo to
remove this weapon from his house.
19.
A firearm was handed in as an exhibit in
the court
a quo.
Evidence was also led as to how a certain firearm made its way from
the fourth accused’s home via Bam to the police who arranged
for that firearm to be dispatched for forensic analysis together with
two spent cartridges retrieved from the scene of the murder.
It
was ultimately established that one of these projectiles was fired
from this firearm.
20.
Gcelu, the mechanic, said that late in the
afternoon of 8 November, the accused and Malashe left his house in a
white Polo. He
also had drinks with the appellants and the
fourth accused at his home (Gcelu’s home) the next night.
21.
He was arrested with the appellants on 5
December 2001.
22.
A trial within a trial was held with
respect to a pointing out made by the second appellant during which
he pointed out the scene
of the crime and the place where the robbed
vehicle had been abandoned. The appellant alleged that he had
been assaulted
in order to induce him to point out these places. The
trial judge found him to be a “pathetic liar” and the
evidence
was ruled admissible.
23.
The prosecution also sought to
introduce evidence of an alleged confession made by the second
appellant to a commissioned police
officer. As I have said,
this alleged confession remains missing and is not before us.
The content of the
“confession” was not read into the record and it is not
possible to determine what the content thereof
was. In the
circumstances counsel were agreed, correctly, that the appeal must be
decided as if no such statement was ever
made. No further
reference need be made to this document.
24.
Both appellants testified in the main
trial. The first appellant admitted that he knew the second
appellant. He testified
that from 8 to 11 November he was in
Pietermaritzburg attending his grandmother’s birthday
celebrations. This evidence was
confirmed by his uncle with whom he
had allegedly stayed in Pietermaritzburg during that period.
25.
The second appellant also admitted that he
knew the first appellant, the fourth accused, Malashe, Bam and Gcelu.
He testified
that during November 2001 he lived in Gauteng. At
that time he was in the process of moving house. On 4 November
he moved
to Northern Park, Johannesburg to stay with a friend and had
no knowledge of the events surrounding the murder and the robbery of
the deceased in Mthatha on 8 November.
26.
Accused no. 4 likewise admitted that the
appellants are friends with each other and that they are also his
friends. He confirmed
that he knew Malashe and Bam and that
Gcelu was staying with him at the time of the commission of the
offences. He testified
that he was in Mthatha on 8 November. At
about 4pm his girlfriend phoned him from Coffee Bay with the news
that she was about to
give birth. He proceeded to Coffee Bay
and returned to Mthatha the next day. His version was supported
in material
respects by his girlfriend.
The
findings
27.
The trial court found that Malashe was
initially not an impressive witness and that it was obvious that he
was distancing himself
as far as possible from any involvement in
these offences. According to the trial judge, it was only after the
court had warned
him once again of the impact of its warning to him
in terms of section 204 of the Act, that he became more relaxed and
the court
gained the impression that he then realised, “most
probably for the first time”, that to divulge incriminating
evidence
was not tantamount to a conviction. The trial court
also reminded itself that these events had occurred about eight
months
before and “under very traumatic and trying
circumstances for accused no. 3”(Malashe). In this regard the
trial judge
said the following:
‘
His
evidence is far from flawless, there are contradictions between his
evidence and David’s, but they to my mind relate to
matters
which are either immaterial or can be described as irrelevant detail
… There are also contradictions between his
evidence and the
statement he made to Captain Gwayi on 5 February, Exhibit F. Many of
these discrepancies are to a very large extent
explained by the open
and frank evidence of Captain Gwayi, who conceded that he could most
probably have been the culprit for certain
misunderstandings which
occurred between himself and No 3. What is however evident from this
statement is that he was very keen
to come clean and to take somebody
into his confidence to get this burden off his chest …
Whatever valid criticism there
may be against his evidence, on the
one hand, is in my view successfully countered by the fact that the
totality of his evidence
(the essential features), the broad view of
what had happened that afternoon is successfully corroborated by
independent witnesses,
David, Bandile and Siphiwo. It also fits
in with the realities of this case, and that is that the deceased was
shot, his
Audi motor vehicle robbed and abandoned at Unitra. To
this must be added No 2’s pointing out of the scene of the
crime,
etcetera, and his confession, Exhibit O … All in all,
and having regard to the application of the cautionary rule referred
to above, I am of the view that despite the defence, the totality of
his evidence can be accepted as truthful and reliable.’
28.
The trial judge likewise found that Mbanga
was a good witness and said that he had no hesitation in accepting
his evidence as reliable
and truthful.
29.
The judge’s view regarding Bam’s
testimony was that it ought to be approached with an open mind. He
described Bam as
self-confident and arrogant, but credited the
witness with the detailed manner in which he had testified. The trial
court said
the following of Bam’s evidence:
‘
That
his evidence suffers from defects, contradictions, etcetera is plain
and in particular the contradictions between himself and
No 3. But
again, as previously pointed out, these discrepancies are in respect
of irrelevant or minor detail and do not touch
the heart of the
matter, the overall picture.’
30.
With respect to Bam having conceded that he
had purposefully misled the police with regard to the firearm, the
court was of the
view that this seemed to indicate that he was no
newcomer or amateur in the league in which he was competing.
31.
The trial judge described Gcelu as a good
witness whose evidence to a large extent confirmed the presence of
the accused in Mthatha
on 8 and 9 November as alluded to by Bam and
Malashe.
32.
The court
a
quo
found that the first appellant and
his uncle did not make a bad impression as witnesses, but once again
described the second appellant
as a pathetic liar, and the fourth
accused and his alibi witness as bad, dishonest witnesses, whose
versions deserved to be rejected
as false.
33.
In dealing in particular with the alibis,
the judge concluded that he was not in a position to separate the two
appellants from
Malashe, saying that “it is a matter of they
all swim together, or they all drown together” (a statement
which I shall
revert to later).
34.
In finding that at the end of the day the
case had to be approached on the State’s evidence, the judge
concluded that it had
been prima facie established that the accused
and Malashe had armed themselves and had left for Mthatha that day
with no definitive
goal or motive in mind. However, when they came
across the deceased’s car, it was immediately resolved that it
had to be
hijacked there and then, and that they had acted
accordingly. The trial judge then describes what must have
transpired thereafter,
as follows:
‘
Their
vehicle was parked in a nearby street with No 1 in control, whilst
the other three, armed, ran towards the driveway where
the Audi had
entered. No 1 in front, with No 2 and 3 following. No 4 waited at the
vehicle, also armed. After “the banging
of the door and the
screaming of a male person” No 3 bailed out, turned around and
ran away. The deceased’s body
was found in his driveway
and the Audi vehicle was later recovered from where it was abandoned
on the campus of Unitra. The deceased’s
cause of death was
recorded as “gunshot, abdomen, inferior venacava and aorta’’
’.
35.
According to the trial judge, this prima
facie evidence had now become conclusive in view of his rejection of
the versions of the
accused.
36.
Dealing with the legal aspects of
co-perpetrators and common purpose, the court found that all the
accused knew that they were going
on a housebreaking expedition in a
car and that one of them was armed with a revolver which had been
obtained and loaded for the
occasion, and that they must have
foreseen, and by inference did foresee the possibility that the use
of a loaded firearm would
have fatal consequences, and that they were
reckless as to whether the fact of death would ensue or not.
37.
I digress to mention that the trial court’s
view in this instance seems at odds with the court’s earlier
deduction that
the accused and Malashe had all armed themselves and
had left for Mthatha with “no definitive goal or motive in
mind.”
38.
It appears further, that immediately before
judgment the trial Court allowed for an amendment to count three to
refer to “firearms”
as opposed to “two firearms”
because it turned out that the evidence led by the prosecution
referred to three firearms.
He thereafter found that the chain
evidence with respect to the firearm produced at the hearing had been
satisfactorily completed,
“at least prima facie”, and
that because Malashe’s evidence was that each of the three
accused possessed his
own firearm when Malashe left the scene, they
could each be convicted of possession of a firearm even if it had not
been recovered.
39.
Thereafter the judge, after having granted
Malashe indemnity from prosecution, convicted the appellants and
accused no. 4 as charged
on the murder and robbery counts, as well as
for each possessing his own firearm and ammunition.
The
material irregularities
40.
In my view the learned judge, after having
warned himself carefully regarding the level of scrutiny to be
applied to the evidence
of an accomplice witness, failed to properly
apply this test to the evidence of Malashe. Malashe was a poor
witness who cannot
be said to have withstood the general test applied
with respect to accomplices. I say so for the following reasons:
(a)
It is improbable that he would have
embarked on an innocent journey with the other accomplices, that they
would have decided to
rob the deceased on the spur of the moment, and
that they would have brought a firearm along by sheer coincidence for
him to “defend
himself” (against what I do not know).
Malashe vacillated between the version of an innocent victim and that
of a robber.
(b)
This is borne out by the difference between
his affidavit, where he admits to having witnessed the first
appellant struggling with
the deceased at the car, and his evidence
at the trial that he did not see any of this.
(c)
Malashe’s evidence does not accord
with the probabilities, being that he was part of a planned robbery,
to the extent that
Mbanga had been mandated to provide the get-away
motor-vehicle, which he did. That is why it was not necessary
for Malashe
to explain to Mbanga what he had been doing and where he
had been. It is probable that Mbanga knew. By the same
token
it was not necessary to explain his position to Bam. In
the light of what I have said, this was not a case where Malashe,
Bam, Gcelu and Mbanga “sat down and fabricated an intriguing
tale”, which would be a ridiculous notion and which was
quite
correctly rejected by the trial court as a probability. On the
contrary, the probabilities militate in favour of a
finding that
Malashe, Bam and Mbanga were not independent witnesses and in my view
the trial judge ought to have had serious concerns
about their
independence (a concession which was also made by the respondent on
appeal).
(d)
In this regard Malashe’s evidence was
materially contradicted by both Mbanga and Bam, despite the trial
judge having found
that Bam, Mbanga and Gcelu had successfully
corroborated his evidence as “independent” witnesses.
41.
In my view Bam, Gcelu and Mbanga were
anything but independent. What follows are but a few examples
of why I say so:
(a)
If Gcelu was indeed an independent witness,
one would have expected him to have asked Malashe what was going on.
Gcelu in
any event had a motive to implicate the accused as he
believed that they were involved in the murder of his friend.
(b)
I agree with the appellants’ counsel
that the prospect exists that the real perpetrators had the deceptive
facility at their
disposal to persuasively describe a robbery which
they had been party to, with their only deviation from the facts of
that robbery
being the substitution of some of the real culprits with
the appellants, particularly when such evidence could earn Malashe
indemnity
from prosecution (see
S v
Hlapezula and Others
1965 (4) SA 439
(A) at 440). This is particularly so with regard to the fact
that a firearm which had been in Bam’s possession not
only
happened to be forensically linked to this case, but Bam appeared to
have had at least five versions regarding his own link
with this
firearm.
(c)
This may not have been all that relevant,
were it not for the fact that the trial judge not only believed Bam’s
fifth version
that the arm had been given to him by accused no. 4,
but then relied on this information to link the appellants to the
crime. The
only link between the firearm and accused no. 4 (and
not the appellants) is the
ipse dixit
of Bam, who is not beyond scrutiny. I agree with the
appellants’ counsel that it is rather unusual that Bam
mentioned
Malashe in connection with the firearm before he ever made
reference to accused no. 4 who was in any event arrested much later.
The possibility that Malashe and Bam could have been the main
perpetrators cannot be excluded, particularly in the light
of Bam’s
explanation of how he ultimately came to be in possession of the
firearm ie. that accused no.4
gave him a
box of unknown items to keep, that Bam found the firearm in the box,
that he asked others to hide it when he was arrested,
and that
significantly, he did not mention a word of all of this to accused.
no. 4 who had given him the box in the first place.
(d)
Bam testified that Malashe told him that he
(Malashe) was present when the murder and the robbery were committed.
Malashe denied
this. This is not only a serious contradiction
between their evidence but also flies in the face of the trial
court’s
finding that they corroborated each other. And
even if they did, such corroboration would have served no purpose to
strengthen
the state’s case against the appellants. It
simply had nothing to do with them.
(e)
Mbanga is also not an independent witness.
Nor is Gcelu. Their evidence in any event does not support a
finding that the only
reasonable inference is that the appellants
committed the crimes.
(f)
It is contended by the appellant’s
counsel that there is no reason, on all the evidence, why Malashe,
Bam and Mbanga could
not have committed the crime and have
substituted the appellants and accused no. 4 as the perpetrators.
That may well be.
However it is not necessary for this
court to arrive at such a conclusion in order to find that the
appellants’ versions
are reasonably, possibly true.
The
pointing out and the alleged confession
42.
As for the evidence of the pointing out made by the second appellant
is concerned, it suffices to say that these ought not to
have been
admitted. It is clear from the evidence that the appellant was
not given sufficient opportunity to secure the services
of an
attorney when he had clearly indicated that he wanted one before
embarking on any procedures which may have been construed
as having
been self-incriminating. In my view this disregard of the
second appellant’s constitutional rights was sufficient
for the
trial court to have ruled the pointing out to the officer
inadmissible.
The
firearms
43.
It is so that the prosecution successfully proved that the firearm
referred to in the ballistic reports (given by Mziweni to
Mfono who
after his arrest requested his mother to take it to Luswazi who was
not called to testify) was the one which fired one
of the cartridge
cases found on the scene. It was however never proved that this
firearm was indeed the same one which Bam
had received from accused
no. 4. A weapon was handed in as an exhibit in court. It
was not shown to either Bam or Mziweni
(during their evidence) to
confirm that it was the same one which they had been referring to.
Indeed, it was not even shown
to Mfono’s mother. All
she mentioned was that she was shown a black firearm.
44.
Accordingly accused no. 4 was not proven to have been in possession
of this firearm.
45.
The trial court
mero motu
amended the charge sheet to reflect
a blanket referral to “firearms” as opposed to “two
firearms” without
considering whether the making of the
amendment would not be prejudicial to the accused. The fact
that this occurred in my
view constitutes a further misdirection.
With regard to the organising principle for deciding the
question of prejudice,
Herbstein J stated as follows in
S v
Gelderbloem
1962 (3) SA 631
(CPD) at 633A referred to with
approval by Murphy J in
S v Maqubela
2014 (1) SACR 378
WCC at
388c-389d:
‘
It
seems to me that no matter whether the court acts on its own motion
or on the application of the prosecutor it should not make
any
amendment without (a) informing the accused of its intention to do
so, and (b) affording him an opportunity of showing that
the
amendment would prejudice him in his defence.’
46.
The amendment was not only prejudicial to the appellants but was not
supported by the evidence. The trial court found as a fact
that “all
the accused knew that they were going on a housebreaking expedition
in a car and that one of them was armed with
a revolver which had
been obtained and loaded for the occasion.” Thereafter, the
trial judge relied on Malashe’s evidence
which he summarised as
follows:
‘
No
3’s evidence was clearly that all three accused were fully
armed when he departed from the scene. In other words, they
were in
physical possession, each of his own firearm. That in my view,
constitutes possession in matters of this nature. To secure
a
conviction of possession in these circumstances, does not to my mind
not(sic) require the State to establish that the firearm
in question
must in fact have been recovered. The accused can consequently been
convicted on count 3 on the basis that each one
was in possession of
one firearm, in other words, his own firearm, individually.’
47.
In any event and despite the amendment, the evidence did not
establish that the items alleged to have been in the appellants’
possession were capable of firing in order to bring them within the
ambit of the statutory definition of firearms.
The
appellants and their alibis
48.
The trial court stated that the first appellant did not make a bad
impression on him. The alibi witness, (the first appellant’
uncle) also initially appeared rather confident according to the
court, but his memory failed him regarding other visits which
the
second appellant had paid to the first. In summing up the court could
not find on their evidence alone, that they were
bad witnesses,
when it said:
‘
In
all fairness to these gentlemen, this Court cannot on their evidence
alone, and as it stands in isolation, find that they were
bad
witnesses.’
49.
Of the second appellant, the trial judge said that his evidence was
true to form, as he proved himself on “three occasions
to be a
pathetic liar”. The court found accused no. 4 to be a bad
witness and that his girlfriend was dishonest.
50.
In dealing with these alibis, the trial court asked itself the
question whether a reasonable possibility existed that they might
be
true. In answering this question the court made the following
comment with respect to the appellants and the alibis:
‘
In
other words they were at all relevant times, grouped together and it
would, in my view, be very difficult, if not impossible,
to separate
them at this late hour. And in the event of such separation if they
be considered, the next question is who must be
separated from whom
and in respect of what incident and/or event. In my view, it is a
matter of they all swim together, or they
all drown together.’
51.
Thereafter the trial judge concluded that because of this, the case
had to be approached and considered on the State’s
evidence,
and because he had rejected the accused’s version, the
prima
facie
State evidence had now become
conclusive.
52.
In arriving at this conclusion, the trial court in my view exercised
its discretion upon a wrong principle. The legal
position with
regard to an alibi is that there is no onus on an accused to
establish it, and if it might be reasonably true, he
must be
acquitted (see
R v Hlongwani
1959
(3) SA 337
(A) at 340h). It is significant in the matter before
us that the trial judge (notwithstanding his rejection of their
evidence)
was constrained to describe the alibi witnesses as “not
bad witnesses”.
Conclusion
53.
It is accordingly clear from the aforegoing that this matter is
fraught with insurmountable difficulties particularly with respect
to
the inadmissibility of the pointing out, the inadmissibility and
unavailability of the confession, the absence of forensic
corroboration and the mendacity of the prosecution witnesses. Over
and above that, in my view it cannot be said that the appellants’
versions were not reasonably, possibly true. In
S v Chabalala
2003 (1) SACR 134
(SCA) at para 15, Heher JA accurately summed the
test up as follows:
‘
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 the 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.’
54.
Having applied that test to the facts and circumstances of this case,
the appellants, in my view, are entitled to the benefit
of the doubt.
In the light of this I make the following order:
ORDER:
(a)
The orders made by the trial court with
respect to the appellants (accused nos 1 and 2) are set aside.
(b)
They are substituted with the following
orders:
(i)
Accused number one is found not guilty on
all counts and he is discharged.
(ii)
Accused number
two is found not guilty on all counts and he is discharged.
19
March 2015
_________________
I.T
STRETCH
Judge
of the High Court
I
agree:
__________________
J.W.
EKSTEEN
Judge
of the High Court
I
agree:
_________________
G.
GOOSEN
Judge
of the High Court
Counsel
for the appellants:
Mr
J.E. Howse
Instructed
by:
Kunene
& Associates
Pinetown
Locally
represented by:
Mpeto
& Associates
Mthatha
Counsel
for the respondent:
Mr
M.K. Joubert
Instructed
by:
The
Director of Public Prosecutions
Mthatha