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[2014] ZAGPPHC 79
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Mokhanda and Another v S (A691/2013) [2014] ZAGPPHC 79 (14 February 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE NORTH GAUTENG HIGH COURT
PRETORIA
CASE
NO: A691/2013
DATE:
14 FEBRUARY 2014
In
the matter between:
PATRICK
LINDA
MOKHANDA
..........................................................
First
Appellant
TSIETSI
JOHANNES
MABASA
.....................................................
Second
Appellant
and
THE
STATE
................................................................................................
Respondent
JUDGMENT
TEFFO.
J:
[1]
The
appellants were convicted in the Regional Court sitting at Sebokeng
on 25 October 2011 for murder and sentenced to 15 years
imprisonment.
[2]
They
appeal against their conviction with the leave of the court a quo.
[3]
The
evidence led at the trial was briefly as follows: Mathapelo Masuwa
(“
Masuwa
”
)
was in the company of the deceased from a tavern around 02:00 when
she met the appellants at a corner in the street. She entered
Matjape
Manganyi’s homestead to look for earnings in the company of the
deceased and the appellants. She got the earrings
and a fight over a
beer started between the appellants and the deceased. The deceased
had a bottle of Hansa beer in his possession
and the first appellant
who asked for a beer from the deceased, slapped the deceased twice on
his face with an open hand after
the deceased refused with his beer.
Subsequent thereto the second appellant also asked for a beer from
the deceased and he refused
with it. He then took out a screwdriver
from his pocket. Masuwa reprimanded them saying they should go as the
police might come.
She left the deceased in the company of the two
appellants and went to Amstrong garage. She did not tell anyone that
the deceased’s
life was in danger. She learned about the
deceased’s death in the morning. She saw the spot where the
deceased fell and it
was far away from the place where she left the
appellants with the deceased.
[4]
In
her evidence-in-chief Masuwa mentioned that she knew the appellants.
The first appellant was her brother’s friend while
the second
appellant grew up in front of her as they stay in the same vicinity.
She also stated that on the night of the incident
she was excessively
drunk, she had a blackout as she moved from one tavern to another.
Furthermore she testified
that she
drank about two cases (24 beers) of 750 ml Black label. She stated
that the cause of death of the deceased was a Hansa
beer. When asked
who killed the deceased, she said she thinks the person who was
holding the screwdriver killed him because he
had taken the
screwdriver from his pocket. Later on she said she was with the
deceased and the appellants at the tavern after meeting
them in the
street.
[5] While
she mentioned during examination-in-chief that she was used to
drinking alcohol everyday and understood what was happening
around
her at the time of the incident, under cross-examination she said she
could not see what was going on around her because
she was drunk. She
said at the time she was in the company of the deceased and the
appellants at the tavern, she was already drunk.
She did not know how
late it was when they were at the tavern. She further said at 02:00
the second appellant had already left
the tavern. At some stage she
said she did not notice the appellants leaving the tavern. When asked
whether the appellants knew
the deceased, whether they were his
friends, whether they were in good terms, she said no, she did not
know what they wanted from
him. When she was told that the second
appellant left the tavern early, she disputed it and said may be she
was walking with a
ghost. She maintained that they walked together
and only left the tavern when it closed. Upon being questioned as to
when did the
tavern close, she said it opens at 10:00 and closes at
02:00. She also disputed that the first appellant left with his
cousin,
Andile.
[6]
Her
evidence revealed that the deceased also had a conflict with other
people at the tavern where they were watching soccer. People
asked
him to move away from the television as he was obscuring their vision
but she said it ended there.
[7]
She
also disputed that the second appellant left the tavern and went
home. When it was put to him that the first appellant also
left the
tavern and went to watch the game at Nomzwake’s place she said
she does not remember. She maintained that she was
with the
appellants at the tavern when they were watching soccer. When asked
who left the tavern first between her, the appellants
and the
deceased, she said she does not know as she only met them in the
street. When told that the first appellant left early
at the tavern,
she said she does not know who left first as she was not taking them
into consideration. It was also put to her
that the second appellant
left the tavern as well and that he was not in the company of the
deceased, she said she does not now.
[8]
Upon
questioning by the court she testified that she does not know when
did the deceased leave the tavern and that she only met
him in the
street. She further said she cannot recall whether the deceased was
at the tavern when it closed. She could not say
whether the
appellants were at the tavern when it closed. She also testified that
she did not sit with the appellants and the deceased
at the same
table at the tavern. She said she sat with her boyfriend and the
people who were buying alcohol for her.
[9]
In
the course of her evidence she mentioned that she was also drinking
the morning she came to court and that she was having a headache.
[10]
Matjape
Manyanyi (“
Matjape
”)
testified that on 27 March 2011 at 02:02 Masuwa came to her house
looking for earrings. She told her that she was in the
company of the
appellants and the deceased but she did not see them.
[11]
The
first appellant testified that on 27 March 2011 he watched soccer at
Nomzwake’s place which ended after 22:00. His cousin
Andiie
phoned him while he was at Apollo and he joined him at Apollo. He
disputed ever being with the second appellant that night
and
maintained that he did not see the deceased that night. He also
disputed ever seeing Masuwa at Apollo that night. He stated
that he
was with Andiie and Sibusiso at Apollo and he left Apollo tavern
around 23:00 together with Andiie. From Apollo tavern
they went to
Amstrong tavern to buy chips. On their way to Amstrong around 23:30
they met Masuwa who told them that she was going
to Amstrong. He
never saw Masuwa at Amstrong. They went to the chips section, bought
the chips and left to his home where they
slept. He was awakened by
the police who came with Masuwa’s brother. He disputed being in
an altercation with the deceased
in the street over a Hansa beer and
slapping him in the company of Masuwa and the second appellant. He
disputed murdering the deceased.
[12]
Andile
confirmed that he was the first appellant’s cousin. He
corroborated his evidence with regard to the fact that he was
with
him on the night of the incident.
[13]
Nomzwake
Peter also corroborated the first appellant’s evidence to the
effect that he was at her place when they were watching
the soccer
game and the time he left her place to Apollo tavern to meet Andile.
[14]
The
second appellant’s evidence was that he left Madolo’s
place to Apollo tavern around 18:00. He sat at Apollo and
took some
drinks. He watched the soccer game at Apollo but left before the game
ended and went home where he arrived around 20:40
and proceeded to
bed. He was awakened by the police in the early hours of the morning.
[15]
Under
cross-examination he testified that he knew Masuwa by sight. Further
that he knew the first appellant, they schooled together,
they were
friends and they all came from Room 12. Masuwa couid have mistaken
him for someone as he was not used to her. At times
they used to
drink together. He disputed that Masuwa saw him at Apollo. He
conceded that he was at Apollo but not in Masuwa’s
company. He
disputed that Masuwa met him on her way to Armstrong in the company
of the deceased. He maintained that he knew nothing
about the first
appellant hitting the deceased with open hands for a beer. He also
disputed that he took out a screwdriver intending
to stab the
deceased.
[16]
Doreen
Mabaso (the second appellant’s mother) testified that she was
at home around 20:00. There was a soccer match. At the
time the game
started, her son was not yet at home but he arrived around 20:40. She
was the person who opened the door for him.
He went to bed and never
went out. Police came to her house around 05:00. She disputed that
the second appellant was seen by Masuwa
at 02:00 with a screwdriver
in his possession and maintained that he was asleep at the time.
[17]
According
to the Post Mortem Report the cause of death of the deceased was a
stabbed chest with signs of blunt force trauma to the
head. It was
mentioned that the characteristic of the wound suggested that it was
caused by an object similar to a thin screwdriver.
[18]
The
grounds on which the first appellant relies for this appeal are the
following:
18.1
That
the learned magistrate erred in accepting the evidence of Masuwa and
rejecting his;
18.2
The
learned magistrate erred in not approaching the evidence of Masuwa
with the caution and circumspection it required, not only
because she
was a single witness but because she admitted to having been
excessively drunk on the date of the incident;
18.3
The
learned magistrate erred in relying solely on the evidence of Masuwa
without it having been corroborated.
[19]
The
second appellant bases his appeal on the following grounds:
19.1
That
the State relied on the evidence of a single witness who was drunk
when the offence was committed;
19.2
That
the evidence of Masuwa who was a single witness did not satisfy the
test as required in section 208 of Act 51 of 1977;
19.3
That
evidence of Masuwa was not corroborated, it was contradictory and
lacked clarity on a number of material aspects;
19.4
That
the appellants’ version was reasonably possibly true.
[20]
In
terms of section 208 of Act 51 of 1977, an accused can be convicted
of any offence on the single evidence of a competent witness.
It is,
however, a well-established judicial principle that the evidence of a
single witness should be approached with caution,
his or her merits
as a witness being weighed against factors which militate against his
or her credibility (Stevens v S
2005
(1) All SA 1
(SCA)).
[21]
The
correct approach to the application of the so-called ‘cautionary
rule'
was
set out by Diemont JA in
S
v Sauls
and Others
1981
(3) SA 172
(A) at 180E-G:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness ... The
trial
judge will weigh his evidence, will consider its merits and demerits
and, having done so will decide whether there are shortcomings
or
defects or contradictions in his testimony, he is satisfied that the
truth has been told. The cautionary rule referred to by
De Villiers
JP in R v Mokoena
1932 OPD
79
at 80, may be a guide to a right decision but it does not mean
‘that the appeal must succeed if any criticism, however
slender,
of the witnesses’ evidence were well-founded ...’It
has been said more than once that the exercise of caution must not
be
allowed to displace the exercise of common sense."
[22]
Nugent
J in
S
v Van der Meyden
1999
(1) SACR 447
(W) at 449c-450b
said
the following:
“
Purely
as a matter of logic, the prosecution evidence does not need to be
rejected in order to conclude that there is a reasonable
possibility
that the accused might be innocent. But what is required in order to
reach that conclusion is at least the equivalent
possibility that the
incriminating evidence might not be true. Evidence that incriminates
the accused and evidence which exculpates
him, cannot both be true -
the one is possibly true only if there is an equivalent possibility
that the other is untrue.
... The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and
the logic
corollary is that he must be acquitted if it is reasonably possible
that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the
court has before
it. What must be borne in mind, however, is that the conclusion which
is reached (whether to convict or acquit)
must count for all the
evidence. Some of the evidence might be found to be false; some of it
might be found to be unreliable, and
some of it might be found to be
only possibly false or unreliable; but none may simply be ignored"
[23]
In
R
v
Mokoena
referred
to supra
De
Villiers JP made the following remarks at 80:
“
Now
the uncorroborated evidence of a single competent and credible
witness is no doubt declared to be sufficient for a conviction
by
[the
person], but in my opinion that section should only be relied on
where the evidence of a single witness is clear and satisfactory
in
every material respect. Thus the section ought not to be invoked
where, for
instance,
the witness has an interest or bias adverse to the accused, where he
has made a previous inconsistent statement where
he contradicts
himself in the witness box, where he has been found guilty of an
offence involving dishonesty, where he has not
had proper
opportunities for observation, etc
[24]
The
State relied on the evidence of Masuwa to prove that the appellants
were involved in the murder of the deceased. The crux of
her evidence
was that the appellants and the deceased had an altercation over a
Hansa beer which the deceased was drinking at the
time. The first
appellant slapped the deceased twice on his face with an open hand
after he refused to give him the beer and the
second appellant took
out a screwdriver from his pocket. Masuwa left the deceased with the
appellants. She did not witness what
actually happened which led to
the deceased’s death. She only learnt in the morning about the
deceased’s death and
she went to the place where she found the
body of the deceased. This place according to her was far away from
where she left the
appellants with the deceased.
[25]
The
defence initially raised the issue of identity claiming that Masuwa
could have mistaken them for other people. Counsel for the
first
appellant made a submission that even if he concedes that Masuwa
could be knowing the first appellant, because of the state
of her
sobriety at the time she could have mistaken him for someone else.
Masuwa mentioned in her evidence that on the night of
the incident
she moved from one tavern to another. She drank ± 24 beers,
she was excessively drunk and at some stage she
said she blacked out.
What puzzles one with her evidence is that while she said she was
used to drinking everyday, she understood
what was happening around
her. Under cross-examination she could not respond to some questions
due to the fact that she said she
was drunk and could not see what
was going on around her.
[26]
Masuwa
explained how she knew the two appellants. From this explanation ! am
satisfied that she could not have mistaken them for
other people even
if she was not of sound and sober senses.
[27]
She
testified that the deceased was murdered because of a beer. Later on
she said she did not know what the appellants wanted from
the
deceased.
[28]
At
some stage she mentioned that she was with the appellants at Apollo
on the night of the incident when they were watching soccer.
Afterwards she said she did not sit with them at the same table but
she sat with her boyfriend and people who were buying her liquor.
When asked who left the tavern (Apollo) first between her, the
appellants and the deceased, she said she does not know as she met
them in the street. She further said she did not take them into
consideration while they were at Apollo. When she was told that
the
second appellant left the tavern and that he was not in the company
of the deceased, she said she did not know.
[29]
She
testified that the person who killed the deceased is the person who
held the screwdriver. How can she say this while she did
not witness
the stabbing?
[30]
It
is also strange that she mentioned that she saw the second appellant
producing a screwdriver at Apollo. Nothing was said as to
what was
happening when the screwdriver was allegedly produced.
[31]
She
stated that the appellants killed the deceased because she left them
with him. She did not witness the killing.
[32]
Under
cross-examination she could not remember the time she saw the first
appellant earlier in the night because she was already
drunk.
[33]
Counsel
for the first appellant submitted that if Masuwa was already drunk
early in the evening and kept on consuming liquor till
the next
morning, her evidence about the events of the night should be
approached with caution.
[34]
It
was also submitted that Masuwa said she took some drinks before she
came to court on the day of the trial.
[35]
Counsel
for the first appellant further made a submission that there was a
short time span from the time Masuwa left the tavern
at 02:00 and the
time of the incident. Further that according to the Post Mortem
Report the deceased died at 03:05. He argued that
there was a lapse
of an hour between the death of the deceased and the time Masuwa left
the deceased with the appellants. He also
submitted that coupled with
this, the deceased was found a distance away from where Masuwa
allegedly left him with the appellants.
He suDmittea tnat sometnmg
could nave nappened to tne deceased especially given the fact that
from Masuwa’s evidence the
deceased had a quarrei with other
people at Apollo. He submitted that it can therefore not be the only
conclusion that the appellants
murdered the deceased. He also
submitted that the evidence of Masuwa which was not corroborated is
not clear and it is lacking
the necessary quality for the court to
rely on it.
[36]
Counsel
for the second appellant submitted that it is highly improbable that
Masuwa could remember the events of the day of the
incident.
[37]
Both
appellants raised alibis. Although they concede that at some stage on
the evening of the incident, they did go to Apollo, they
all mention
that they left Apollo early. The second appellant testified that he
left and went home to sleep. He arrived at home
around 20:40. He was
never with the first appellant that night. This evidence was
corroborated by Doreen, his mother. The first
appellant said he was
at Apollo with Andile. From Apollo they went to Armstrong to buy
chips and they went home.
[38]
It
is trite that the State has to prove the guilt of the accused beyond
a reasonable doubt. It is clear from the record that Manganyi
did not
corroborate Masuwa’s evidence to the effect that when she came
to her homestead to look for earrings she was in the
company of the
deceased and the appellants. She testified that although Masuwa told
her about them, she did not see them.
[39]
It
is not clear from the evidence whether, when Masuwa allegedly met the
appellants and the deceased, she was on her way home or
to Amstrong.
Initially she said she was on her way home. Later on she said she
left the deceased with the appellants and went to
Amstrong garage.
Her evidence was confusing and not credible.
[40]
Counsel
for the State conceded that Masuwa testified that she had taken some
drinks when she came to court on the day of the trial.
She also
conceded that she testified that she was excessively drunk at the
time of the incident. She further conceded that although
Masuwa
testified during examination-in-chief that she was used to drinking
and understood what was happening around her, under
cross-examination
she testified that she did not see what was going on around her.
Counsel also conceded that Masuwa’s mind
could have been
impaired at the time.
[41]
Given
the state in which she was on the night of the incident and in court
when she gave evidence, her testimony could not be relied
upon as it
was lacking, contradictory and not credible.
[42]
As
already discussed supra,
the
evidence of Masuwa was lacking, unreliable and not clear in every
material respects as required in section 208 of Act 51 of
1977. The
alibis of the appellants were confirmed by witness. They could have
been reasonably possibly true.
[43]
The
submission by the appellants’ counsels that something could
have happened to the deceased after Masuwa allegedly left
him with
the appellants as a period of an hour had lapsed since then and his
body was found a distance away from where she left
them, has merit.
Although the court a quo made a finding that the deceased’s
body was found where Masuwa left him with the
appellants, that was
not the evidence of Masuwa. Her evidence was that the deceased’s
body was found a distance away from
where she left him and the
appellants. By making such a finding the court a quo
misdirected
itself as to the evidence.
[44]
The
court a quo
also
misdirected itself by relying on the evidence of Masuwa, whose
evidence was lacking, inconsistent, not credible, unreliable
and not
satisfactory in every material respects to justify a conviction.
[45]
The
court a quo
should
therefore not have convicted the appellants at all given the evidence
of Masuwa. They should have been given the benefit
of doubt.
[46]
In
the result I make the following order:
46.1
The
appeals against conviction of the appellants are upheld;
The
convictions of the appellants by the court a quo
are
hereby set aside and replaced with the following:
“
The
first and second appellants are found not guilty and discharged
M
J TEFFO
JUDGE
OF THE NORTH GAUTENG
HIGH
COURT, PRETORIA
I
agree:
S
A M
BAQWA
JUDGE
OF THE NORTH GAUTENG
HIGH
COURT, PRETORIA