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[2014] ZAGPPHC 500
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Matlala v S (A883/2012) [2014] ZAGPPHC 500 (13 June 2014)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE NUMBER: A883
/ 2012
DATE: 13 JUNE
2014
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
TSHIDI
MATLALA
.....................................................................................................................
APPELLANT
And
THE
STATE
...............................................................................................................................
RESPONDENT
JUDGMENT
MAVUNDLA J
[1] The appellant
was convicted and sentenced by Makgoka J on count 1 of murder and
sentenced to 20 years imprisonment; on counts
3 and 4 respectively,
robbery with aggravating circumstances as intended in s1 of Act 51 of
1977, and sentenced to 8 years imprisonment
on each count; on count 5
unlawful possession of a firearm and sentenced to 5 years
imprisonment and on count 6 unlawful possession
of ammunition was
sentenced to 2 years imprisonment. It was ordered that the sentence
imposed in counts 4, 5 and 6 shall run concurrently
with sentence in
count 3.
[2] The appellant
now appeals against the conviction with the leave of the court a quo
having been granted against conviction only.
[3] It needs mention
that the appellant together with his coaccused were duly legally
represented throughout the trial. The appellant,
as well as his
co-accused, pleaded not guilty to all the counts. They exercised
their right of silence. They were warned of the
implication of the
provisions of s51 (1) Act 105 of 1997 (The minimum sentence Act).
[4] The conviction
of the appellant is a sequel to the unlawful and intentional killing
of the deceased Kgashane Patrick Lebea at
Modubung Village on the
night of the 29
th
July 2005. It is common cause that the
deceased died as the result of gunshot injuries he sustained on the
29
th
July 2005.
[5] The conviction
of the appellant on the two counts of robbery was a sequel to the
robbery of Mrs. Mmakoma Julia Malatje (the
victim in count 3) and her
daughter Ms Moloto Sulphina Malaja (the victim in count 4) at
Modubung Village on the night of the 29
th
July 2005. It is
common cause that the incident occurred at an isolated and unlit
area.
[6] The conviction
of the appellant on counts 5 and 6 arises from the fact that in the
murder and robbery charges a firearm was
involved.
[7]
The issue in respect of the murder and robbery charges is whether the
identity of the appellant was proven beyond reasonable
doubt by the
State
1
.
[8] In respect of
counts 5 and 6, the possession of firearm and ammunition, the issue
is whether the appellant can be convicted
on possession on the basis
of common purpose.
[9]
The conviction of the appellant was premised on the evidence of Mr.
Sefora Tshepo Evans, the former co-accused with the appellant,
against whom the State withdrew charges in terms of
section 204
of
the
Criminal Procedure Act 51 of 1977
as amended. As an accomplice,
his evidence must be approached with measure of caution
2
.
It is so because, as an insider, he may manipulate the evidence to
suit his design. The court, in approaching the evidence of
an
accomplice, must be wary of the danger of convicting on the evidence
of an accomplice, as he can tell a lie to sound like the
truth,
motivated by the desire to save himself from prosecution. After all
said and done, the court must be satisfied that the
truth has been
told by the accomplice
3
.
[10]
The state also relied on the evidence of the victims of the two
robbery charges. Their evidence is also subject to cautionary
rules
relating to identification. The question of visibility, illumination,
opportunity to see and observe the perpetrator, prior
knowledge of
the perpetrator, etc, are factors to be taken into consideration in
determining whether the state has proven the identity
of the accused
person,
in
casu,
the
appellant.
4
[11]
Another state witness, whose evidence the state relied upon to secure
the conviction of the appellant, was Kgangelo Sarah Mokgomolo,
a
former girlfriend of accused 1 known as Thabiso Thabo Moloto. Her
evidence also is subject to the same cautionary rules applicable
in
question of identification
5
.
In her case, as a former girlfriend of accused 1, she may have a
motive, to either give false evidence to implicate the former
boyfriend to settle a score or to have him acquitted. It is therefore
necessary that her evidence also be approached with a measure
of
caution.
[12] It needs
mention, for whatever is worth, that the appellant’s co-accused
number 1 did not testify, save for calling his
father as a witness.
For purposes of this appeal it shall not be necessary to refer to the
evidence of the father to the coaccused.
The appellant took the stand
in his own defence.
[13] According to Ms
Mokgomolo on the night in question she was at Majesa Liquor
Restaurant tavern, so too was accused 1. He refused
her request to
accompany or see her off. She eventually left alone. She shortly
thereafter, saw accused 1, Tshepo (the
s204
witness) and the
appellant walking down another road. She saw them accosting the
deceased. She was about 20 meters away from them.
The three assaulted
the deceased. The deceased inquired from accused 1, calling by his
name Thabiso, that he is assaulting him.
She saw accused 1 shooting
the deceased who was lying on the ground. She heard four gunshots.
The trio then left the place to pick
up schoolbags and ran away. She
could see them clearly because nearby there was light from a machine
which illuminated the place.
[14] According to Ms
Mokgomolo, shortly thereafter, she saw the trio walking in the
direction of from where the two ladies (the
robbery victims) were
coming. She saw accused 1 and Sefora approaching the two ladies. The
old lady (whom she referred to as Nkome’s
mother) was pointed
with a firearm but could not see who was pointing. I must hasten to
point out that her evidence of two people
approaching the two ladies
accords with the version of the two robbery victims as well as that
of Sefora. At that moment, Ms Mokgomolo
was about 30 meters from
where the robbery was taking place. Her evidence, however, does not
accord with that of Sefora who said
that it was accused 1 and the
appellant who approached the two ladies.
[15] Under cross
examination she said that there were three schoolbags, one was brown
in colour. Taking into account the fact that
it was at night, in my
view, it is probable that the brown bag might in fact be the red
schoolbag mentioned by Sefora. Her evidence
that accused 1 shot the
deceased corroborates that of Sefora. Her evidence also accords with
that of Sefora that all three accosted
the deceased.
[16] Responding to
the court’s questions Ms Mokgomolo said that where the deceased
was attacked, there was a school and light
nearby, illuminating the
area. She could see the trio around the deceased clearly because she
was at a spaza shop at the same school
from which the light came.
[17]
According to Sefora, on the night in question, he was with accused 1
(Thabiso) and the appellant (Tshidi). The three had two
firearms, one
in possession of Thabiso and the other appellant.
6
They accosted the deceased. Sefora searched the deceased and took his
wallet. A R10.00 note fell. The appellant hit the deceased
who fell
to the ground. Accused 1 shot the deceased twice. They left and later
shared an amount of R1800.00 they found in the deceased’s
wallet.
7
[18] Sefora further
testified that, after they left the scene in count 1, they came
across two ladies, an old and a young one. The
appellant and accused
1 pointed the two ladies with firearms. Sefora took an amount of
R30.00 from the old lady, and earrings,
a necklace chain (sic), cell
phone and R10.00 from the young lady. Sefora and the appellant took
the young lady with them to the
mountain, where Sefora took a red
jersey from the young lady and placed it in a schoolbag. They allowed
the young lady to leave.
The two returned to the village where they
joined Thabiso. There were two cell phones which were taken by the
appellant with the
intention to sell.
[19]
Under cross examination Sefora said that accused 1 was also present
at the mountain. He further explained that they left Thabiso
at the
hillock in the village, wherefrom, he and the appellant then
proceeded to the mountain.
8
[20] It is common
cause that the two ladies were robbed on the night in question and
also that the young lady was taken to the mountain
by two people.
Sefora also conceded that he made a statement to a magistrate which
is exhibit E that “Tsidi and Thabiso”
searched the
deceased and took his wallet containing money. He further conceded
that he told a lie in his statement to the magistrate.
His
explanation was that he wanted to have the two arrested and
prosecuted for the robbery.
[21] According to
Mrs Malatje, while she and her daughter were walking, they were
accosted by one person who pointed her with a
firearm and demanded a
cell phone and money. He searched her and took R30.00. He instructed
her to run and she obliged, leaving
behind her daughter. The place
was dark, as a result, she was unable to see the culprit clearly to
be able to identify him.
[22]
According to Ms Malatje, they were robbed by two people who also took
her to the mountain where she was later released. Her
evidence so
far, in my view, is corroborated by that of Sefora. She however,
pointed out accused 1 in identification parade and
also at court
9
.
Her evidence with regard to accused 1 at the mountain does not
correspond with that of Sefora who said that accused 1 was left
at
the hillock. Of importance is the fact that, both the young lady and
her mother did not identify the appellant as one of the
men who
robbed them.
[23] According to
Sefora, both accused 1 and the appellant pointed firearms at the two
ladies. However, the two ladies only made
mention of one person
pointing them with a firearm. This is in my view, a material
contradiction which should have generated doubt
in the mind of the
court.
[24]
The version of the appellant was a denial of any involvement in the
alleged crimes. He however, placed himself at the Majesa
tavern on
the day in question.
10
He also placed himself at Modubung when he accompanied his aunt at
about 20h00
11
.
The court a
quo
rejected
his version and found him guilty on all counts.
[25]
I am of the view that, the contradictions referred to herein above,
in so far as the robbery charges are concerned, are of
material
nature that they cannot be overlooked, in deciding whether the state
has proven the guilt of the appellant beyond reasonable
doubt. It is
trite that where there is any doubt on the part of the court, then
the accused person must be granted the benefit
of such doubt and be
acquitted. I am of the view that the
court
a quo
,
in convicting the appellant on the robbery counts misdirected itself.
The court a
qou
should
have found that the state has not proven the guilt of the appellant
beyond reasonable doubt in both robbery counts 3 and
4. This court is
therefore at large to interfere on both robbery counts and set them
aside. It stands to reason that the sentence
of 8 years in respect of
each of these counts must also be set aside.
[26] Mr. Sefora’s
in his evidence stated that accused 1 shot the deceased. Sefora
searched the deceased and took his wallet.
Under cross examination he
conceded that this version contradicts his earlier statement made to
a magistrate, (exhibit E).
[27] The evidence of
Sefora that he, together with accused 1 and the appellant accosted
the deceased is corroborated by the evidence
of Ms Mokgomolo. The
trial court, quite correctly, in my view, found that these two
witnesses corroborated each other in respect
of the attack and
killing of the deceased. The trial court proceeded to find that the
state proved the guilt of the appellant in
respect of the murder
charge. There is no basis to interfere with this finding and
therefore the appeal on this conviction must
fail.
[28]
The evidence of Sefora was that all three had two firearms and
accused 1 shot the deceased. According to Sefora, the appellant
had
one of the two firearms. Ms Mokgomolo corroborated Sefora that
accused 1 had a firearm and shot the deceased. Assuming for
a moment
that the evidence of Sefora that the appellant had a firearm, should
not to be accepted, the appellant cannot, nonetheless,
escape
conviction on both counts 5 and 6, possession of firearm and
ammunition respectively. The facts are that the deceased was
robbed
by one of the gang of three, in the immediate presence of the other
two gang members; they all left the scene together.
It is inescapable
in these circumstances not to infer that they all acted in common
purpose in the robbery and murder. The one,
who possessed the
firearm, must have possessed the firearm on behalf of the other, to
execute a grand plan of robbery. The appellant
was part of the gang
and failed to present a reasonable explanation to show that the
firearm was not in his possession. On inferential
basis and on common
purpose he was in possession;
vide
S v Mbuii
12
decision
which was reiterated by the Supreme Court of Appeal in
Molimi
v The State
13
In my view, the appellant was quite correctly convicted on counts 5
and 6. I therefore conclude that the appeal on count 5 and
6 must
fail.
[29] The leave to
appeal was granted only against conviction. The court a quo ordered
that the sentence imposed in counts 4, 5 and
6 shall run concurrently
with sentence in count 3. However, count 4 and 3 stand to be set
aside. What remains is the fact that
the sentence imposed in count 5
and 6 still remain running concurrently.
[30]
The court a
quo
found
that the
s204
witness was a satisfactory witness and proceeded to
grant him indemnity from prosecution for the crimes related to this
case. The
state has requested this court, to reverse the aforesaid
indemnity from prosecution. I am of the view, that where the state
intends
to request the appeal court to overturn the indemnity against
prosecution granted, it must serve a notice to the
s204
witness,
informing him or her of its intention. In the absence of such a
notice and the concerned witnesses, the court will decline
to
entertain the request of the state. It must be borne in mind that the
concerned person has a right to be heard before an adverse
order
against him can be made. The request is therefore refused.
[3] In the result
the following order is made:
AD CONVICTION
1. That the appeal
in respect of count 1 is dismissed and the conviction and sentence of
20 years is confirmed.
2. That the appeal
against conviction on counts 3 and 4 respectively is upheld and the
conviction on both these counts is set aside
and the respective
sentences of 8 years in each count are set aside;
3. That the appeal
against the conviction in respect of counts 5 and 6 is dismissed and
the conviction on both counts 5 and 6 is
confirmed.
[4. That the
sentence imposed in count 5 is ordered to run concurrently with the
sentence imposed in count 6;
N.M MAVUNDLA
JUDGE OF THE HIGH
COURT
I agree
A C BASSON
JUDGE OF THE HIGH
COURT
I agree
N JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE HIGH
COURT
DATE OF HEARING : 11
JUNE 2014
DATE OF JUDGMENT :
13 JUNE 2014
ATT FOR THE
APPELLANT: PRETORIA JUSTICE CENTRE
COUNSEL FOR THE
APPELLANT: ADV M TLOUWANE
ATT FOR THE
RESPONDENT : DPP COUNSEL
FOR THE RESPONDENT :
ADV R MOLOKOANE
1
Vide
S
v
Shackell
2001
(2) SACR 185
(SCA) at 194g-i;
S
v
Mafiri
2003
(2) SACR 121
(SCA)at 125c-d
;Sv
Jochems\99\
(1)SACR208
(A)21 lj.
2
*R
vManda
1951
(3) SA 158
(A) at 163 C-E; R v Mokoena
1956 (3) SA 81
(A) at 85-6;
3
E
v Lesedi
1963 (2) SA 471
(A) at 473F,
4
S
vMthetwami
(3)
SA 766(A) 768A-C.
5
Carious
v
S
[2008] ZASCA 14
;
2008
(3) ALL SA 321
(SCA) at 325.
6
Paginated
pages 18 lines
13-23,
19.
7
Paginated
pages 19 et 20 lines 10-19.
8
Paginated
page 34 lines 14-22 of volume 1-84 of the record.
9
Paginated
page 66 line 10-
10
Paginated
page 161 lines 2.
11
Paginated
pages 165 lines 10-page 167 Iine6, pl68 Iinel3.
12
2003
(1) SACR 97
(SCA) at para 71.
13
[2006]
SCA 38 (RSA) para [37].