About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2014
>>
[2014] ZAFSHC 98
|
|
Meje and Another v S (A264/2013) [2014] ZAFSHC 98 (29 May 2014)
FREE STATE
HIGH COURT, BLOEMFONTEIN
REPUBLIC OF
SOUTH AFRICA
Appeal No. :
A264/2013
In
the appeal between:-
TEBOHO
MEJE
....................................................................................................................
1
st
Appellant
LEBOHANG
FRANS
MOCUMI
.......................................................................................
2
nd
Appellant
and
THE
STATE
.............................................................................................................................
Respondent
CORAM:
RAMPAI AJP, KRUGER
et
CJ MUSI, JJ
JUDGMENT
BY:
THE COURT
HEARD
ON:
26 MAY 2014
DELIVERED
ON:
29 MAY 2014
THE
COURT:
[1]
The two appellants were convicted of murder and robbery with
aggravating circumstances and they were each sentenced to life
and 15
years’ imprisonment on 8 October 2008. The trial court
refused leave to appeal. Leave to appeal was granted
by the
Supreme Court of Appeal on 19 March 2013 in respect of the
convictions only. The appellants were respectively accused
2
and 3 in the trial court, and are referred to as such in this
judgment. Accused 1 was acquitted by the trial court. The
deceased was robbed of a state-owned white Corolla vehicle and
murdered on the evening of 25 November 2005. No eye witnesses
identified the appellants as his assailants.
[2]
The question in this case is whether the evidence of a single witness
implicating the appellants was sufficiently cogent to
justify the
conviction of the appellants. The appellants did not testify.
Their view was that there was no case to
meet.
[3]
The only evidence implicating the appellants is that of Silas Tebane
Leeto, who testified that on the morning after the robbery
and
murder, at 04:00 he received a telephone call from accused 3, who
lived in the same area as Leeto. Accused 3 told Leeto
that he
and accused 2 had a car they wanted to sell. Leeto knew that a
certain Sparks wanted a car. At 05:00 the two
arrived at
Leeto’s place with a white Corolla that had no registration
number at the front. Accused 2 told Leeto that
accused 3 had
shot the owner of the Corolla. Accused 2 and 3 left, accused 2
was driving the Corolla. Accused 2 told
Leeto that they were
going to leave the car in Zone 2. After they had left, Sparks
called Leeto. Accused 2 and 3 returned
to Leeto later that same
day at 11:00 wanting to know what Sparks had said. In
cross-examination it emerged that Leeto told
Sparks that the owner of
the vehicle had been shot, upon which Sparks said he was no longer
interested in the car.
[4]
The police statement of Leeto was handed in during cross-examination.
He initially agreed that the statement was read
back to him and
he confirmed the contents thereof. Later he said that he did
not read the statement before he signed it.
In cross
examination he said that he did not tell the police official who took
the statement that accused 2 and 3 came to his house
at 05:00 with
the vehicle and that the vehicle did not have a registration number
at the front. Asked why he did not say
that to the police,
Leeto responded that he did not know why, adding that the other
person was a detective, he knows his work.
Pressed further,
Leeto said it did not come into his mind to tell the police that the
vehicle did not have a number plate
and to say that the accused
brought the vehicle to him at 05:00. He testified that he
worked as a driver at a firm of attorneys.
Asked why it took
him a year and five months to go to the police he said the police
came to him, he did not go to them. It
never occurred to him to
go to the police and report the matter to them. Why it took the
police a year and five months to
get a statement from Leeto was never
explained. Neither does it appear from the record why the cell
phone records of Leeto
or accused 3 were not requested and presented
as evidence. There is no evidence incriminating the accused
other than that
of Leeto.
[5]
In the judgment the trial judge said it had to be acknowledged that
Leeto was not convincing regarding his explanation of why
the accused
would wake him up at 04:00 to discuss something he had never been
involved with, namely the sale of stolen vehicles.
The trial
judge had a lingering suspicion that Leeto may have been part of a
syndicate involved in car thefts and that he
was perhaps concealing
his true role in order to save his own skin. Yet, on the other
hand, the judge said that there was
nothing to suggest that he would
falsely incriminate the accused. The trial judge said he was
painfully aware of the culture
in townships of being reluctant to
expose the wrongdoings of friends, relatives and acquaintances and to
testify about those in
court. The trial court found Leeto’s
account full and credible. The trial court found that Leeto’s
evidence
that when the accused returned at 11:00 they were travelling
in accused 2’s Chevrolet could not be a fabrication. The
trial judge did not expand on or give reasons for this finding. As
to the discrepancies between Leeto’s evidence and
his police
statement the trial judge found that the police statement is a
summary and cannot stand on the same footing as evidence
in court.
As to the fact that the name of the deceased from whom the
vehicle was taken, George, is mentioned in the statement,
whereas
Leeto says he did not know the deceased and the name of the deceased
was not mentioned by the accused, the trial judge
found that Leeto’s
explanation that he did not know how that name came to be mentioned
in his police statement, could not
be challenged. This finding
is not expanded on. The trial judge found the fact that the
deceased’s vehicle was
found in a nearby forest supported the
evidence that the proposed buyer withdrew. It is difficult to
see how the finding
of the vehicle supports or contradicts the
evidence of Leeto.
[6]
The law regarding inferences to be drawn from contradictions between
evidence in court and police statements has been dealt
with in a
number of cases. Generally omissions from police statements,
regarding aspects on which the witness expands in
court, will not be
held against a witness. The position is different where there
are assertions in the police statement that
are disavowed by the
witness in court. In this case, the mentioning of the name of
George, the deceased, which Leeto says
he never told the police, was
mentioned in the statement but disavowed in court by Leeto.
[7]
Before a witness can be discredited because of differences between a
police statement and evidence, there have to be material
discrepancies (
S v Bruiners en ‘n
Ander
1998 (2) SACR 432
(SECLD) at
437g-j). In
S v Mafaladiso en
Andere
2003 (1) SACR 583
(SCA) at
593i-j Olivier JA points out that where there are contradictions, the
court should in the first place determine what the
witness really
intended saying on each occasion. Secondly, not every
contradiction affects the credibility of a witness (594c-d).
Thirdly, the contradictory versions must be compared and
evaluated holistically (594d-e). Lastly the trial judge must
weigh up the statement against the
viva
voce
evidence of the witness (594f-g).
In
S v Govender and Others
2006 (1) SACR 322
(ECD) Nepgen J repeated the requirements listed in
Mafaladiso
and added that regard must also be had to the type of person the
witness is, and cultural differences (at 326c-j). Some witnesses
give
ill-conceived and nonsensical answers when they find themselves in a
perceived predicament (326e-f).
[8]
Leeto was not an unsophisticated or completely uneducated man. He
worked as a driver for a firm of attorneys. He
said he believed
detectives knew their work. The discrepancies between what he
said in evidence in court and what was left
out of the statement, go
to the two core elements of the case against the appellants: (i) the
identity of the deceased and (ii)
the vehicle. In the statement
he does not mention that he saw the vehicle at all, but in his
evidence he says he saw the
vehicle and that it did not have a
registration number at the front. In the statement he mentions
the name of the deceased,
George, but in his evidence in court he
says he never mentioned the name George or the name of the deceased,
to the police.
[9]
These discrepancies cannot be explained by having regard as to what
the witness really intended to say on each occasion. The
police
were investigating the robbery of the vehicle and the murder of the
deceased. One would expect the statement to deal
with those two
elements. Yet Leefo says in re-examination that he did not
mention George, he did not even know who George
was. As to
language, Leeto says he and the police official taking the statement
understood each other because they were speaking
the same language.
[10]
The state failed to make out a case against the appellants. Counsel
for the respondent, Mr Strauss, at the outset of
his argument in
court conceded that the appeal should succeed.
ORDER
1.
The appeal succeeds.
2.
The convictions and sentences of both appellants are set aside.
MH
RAMPAI, AJP
A
KRUGER, J
CJ
MUSI, J
On
behalf of 1
st
appellant: Adv J Nel
Instructed
by:
Kramer,
Weihmann & Joubert Inc.
BLOEMFONTEIN
On
behalf of 2
nd
appellant:
Adv PW Nel
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent:
Adv M Strauss
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN