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2014
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[2014] ZAFSHC 238
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Mohlomi v S (A184/2014) [2014] ZAFSHC 238 (12 December 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
Number: A184/2014
In
the appeal of:-
MONYAANE
ISHMAEL MOHLOMI
…...................................................................
Appellant
and
THE
STATE
…...........................................................................................................
Respondent
CORAM:
VAN DER MERWE, J
et
MURRAY, AJ
JUDGMENT
BY:
MURRAY, AJ
HEARD
ON:
3 NOVEMBER 2014
DELIVERED:
12 DECEMBER 2014
[1]
This is an appeal against the Appellant’s conviction of murder
in the Regional Court, Senekal, where he was sentenced
to 15 years’
imprisonment. His application for leave to appeal was dismissed, but
his petition to the High Court succeeded.
Although he was granted
leave to appeal against both the conviction and the sentence, this
appeal lies only against his conviction.
[2]
Two accused were charged with the murder. Both pleaded not guilty,
and only the Appellant (Accused 2) was convicted. He
denied
being at the crime scene and raised an
alibi
defence. The trial court convicted him
on the evidence of a single witness, Ms Motaung, for whose evidence
regarding his presence
at the crime scene it found corroboration in
the evidence of Accused 1.
[3]
Accused 1 was acquitted. Although his statement before a magistrate
was received as Exhibit “C” and his written
plea
explanation as Exhibit “A”, the documents were neither
read into the record nor included in the appeal record.
In court he
merely said that he abided by the contents of the statements and did
not present any evidence in chief. This is of
serious concern since
the contents of the statement and plea explanation might have had a
significant bearing on Accused 1’s
credibility and might have
had material implications for the Appellant’s conviction. The
problem is further compounded
by the trial court’s failure, in
a brief 2-page judgment, to motivate its acceptance of Accused 1’s
evidence while
rejecting the Appellant’s.
[4]
An accused is entitled to be informed of the judge’s reasons
(See:
S
v Maake
[1]
.)
It is as important that another court which has to consider the case
be given the advantage of the trial court’s
reasons. In
Protea
Assurance Co Ltd v Casey
[2]
the Court warned that especially if the matter had to be decided
merely on the record, as
in
casu
where
the record is not even complete, the burden of proof plays a very
important part. In an ordinary criminal case this
has been held
to entail that a court of appeal’s doubt results in the
acquittal of the accused.
[3]
In the present instance, however, Counsel were agreed that this
appeal can be properly decided on the record despite
the missing
exhibits.
[5]
The trial court found that it had only Ms Motaung’s version of
the events of the night in question, but it had a problem
with her
evidence. It found her to have been vague on certain aspects
and her high alcohol consumption to have affected the
quality of her
evidence. In its view, although her evidence in chief appeared to be
very good, her evidence under cross-examination
could not simply be
accepted as conclusive without finding corroboration regarding the
Appellant’s presence in Accused 1’s
evidence.
[6]
The trial court’s explanation for Accused 1’s acquittal
was that he had made a statement shortly after the event
and repeated
its contents in court, although it appears from the record not to be
the case, and that ‘
certain
similarities’
between his
evidence and that of Ms Motaung corroborated her version.
Despite being ‘
not quite satisfied
with his version’
, and despite
‘
discrepancies and evidence that
was not quite acceptable’
the
trial court found his version to be ‘
reasonably
possibly true’
, gave him the
benefit of the doubt and acquitted him.
[7]
The trial court disposed of the Appellant in two sentences. It held
that it could not accept the Appellant’s reason for
accusing Ms
Motaung of giving false evidence and that on Ms Motaung’s
evidence as corroborated by Accused 1’s there
was no doubt
about the Appellant’s guilt. It then convicted the
Appellant as charged.
[8]
The pertinent facts on Ms Motaung’s version are that at around
22h00 on 15 May 2009 at the Old English Pub in Senekal
the deceased
asked her to drive with him to Paul Roux. They stopped to offer
the Appellant and Accused 1 a lift. She
recognised both of them
from having seen them in town before. Along the way, after both
the Appellant and Accused 1 had on
two separate occasions asked him
to stop to allow them to urinate, the deceased asked the Appellant
and Accused 1 for payment for
their transport. Informing them
that if they could or would not pay, they might as well get out right
away, he stopped the
car and the three of them got out. Ms
Motaung remained in the car at first.
[9]
She heard an argument outside the car. She saw the Appellant
and Accused 1 disappear into the bush, one of them dragging
the
deceased. She did not see what they were doing, but heard a
noise and what sounded like a scream. It gradually
died down,
but she was too scared to go and look. She got back into the
car and locked the doors. When the Appellant and
Accused 1 reappeared
she saw that both their clothes were blood-stained. Accused 1
at some stage threatened to stab her,
too, and the Appellant told him
not to. The deceased she did not see again.
[10]
After Accused 1 had tossed away the car keys, the three of them got a
lift from a truck to a township near Senekal. At Accused
1’s
home the two men changed their bloodied clothes. She waited at a
friend of Accused 1’s house while the Appellant
and Accused 1
accompanied the said friend to a tavern. Upon their return, the
Appellant slept with her for payment.
[11]
Accused 1 testified that he was with the Appellant when the deceased
gave them a lift and confirmed that they on two occasions
asked the
deceased to stop the car. According to him, however, the
Appellant was the one who killed the deceased while he
tried three
times to stop the Appellant, once while the Appellant and the
deceased were fighting in front of the car; then when
the Appellant
started to stab the deceased and dragged him to the side of the road
before dragging him into the bush, then when
the deceased escaped and
ran to the car, walked around it and tried to get in, before the
Appellant caught him again and dragged
him back into the bush; and
thereafter when the deceased escaped once more and was dragged back
to the bush again. He maintained
that he got blood on his
clothes when the deceased grabbed him, asking for help, and they both
fell. He claimed that
after his first attempt to stop the
Appellant, he remained standing next to the car with Ms Motaung,
listening to the sounds the
knife made during the stabbing.
According to him, Ms Motaung witnessed everything, including the
stabbing.
[12]
The Appellant denied having been at the murder scene at all. He
alleged that he spent the evening and the first part of the
night
with his cousin at a tavern. He promised to call the cousin to
confirm his
alibi,
but by the time the case was heard, the
cousin had passed away. Although the Appellant admitted that he slept
with Ms Motaung in
the early hours of the morning at Accused 1’s
friend’s house, he denied having been in the deceased’s
car with
them. He maintained that Ms Motaung falsely implicated him
because she was angry at him for merely paying her R20 instead of the
R30 she had asked.
[13]
There are three reasons why the trial court should have treated the
evidence of the key State witness, Ms Motaung, with caution.
First of all, she was a single witness as defined in
S
v Lotter
[4]
since the Appellant’s conviction rested solely on her
evidence. On that ground, the trial court therefore had to
apply
the cautionary rule applicable to single witnesses in
evaluating her evidence
[5]
.
It merely mentioned that she was an ‘only’ witness,
however, and whether it appropriately applied the rule,
is not clear.
[14]
Secondly, Ms Motaung was under the influence of alcohol during the
incident. It need hardly be said that a court should
be
particularly vigilant in a case where a single witness was
intoxicated at the time of the events he or she describes. Her
intoxication clearly affected her ability to remember the events in
specific detail and in cross-examination she contradicted some
of her
earlier averments. This rendered her evidence regarding material
events extremely vague.
[15]
Thirdly, Ms Motaung’s evidence was identification evidence
since the Appellant denied that he was at the crime scene.
That
means that her evidence needed to be not only credible but also
reliable to obviate the possibility of false identification
(See
S
v Mtethwa
[6]
).
In order to convict the Appellant on her evidence, the trial court
therefore needed to examine not only her credibility,
but also the
reliability of her evidence with regard to such factors as the degree
of her intoxication and the effect thereof on
her perception, the
lighting, the visibility, her proximity to the Appellant, the time
spent in the Appellant’s presence,
and especially her prior
knowledge of the Appellant. The judgment does not indicate that
it did so.
[16]
On appeal the State supported the Appellant’s conviction.
In support thereof it was argued that Ms Motaung’s
evidence
regarding her identification of the Appellant was not problematic
because she knew him before the murder, the lighting
in the area
where they picked up the two men and the lighting in the car was
sufficient to identify him, and she spent the night
with him.
It contended that she evidently did not out of malice falsely
identify him since she made no attempt to implicate
him more directly
in the murder.
[17]
The trial court found that a conviction could not be based on her
evidence alone. Although for the reasons alluded to
by counsel
for the Respondent, the finding is indeed open to some doubt, this
Court cannot as a court of appeal be convinced that
it is wrong. The
judgment was rendered by an experienced magistrate who certainly was
in a more favourable position than
this Court to judge what is
probable or improbable in the light of its observation of the
witnesses and its insight into the exhibits
that are absent from the
record before us.
[7]
[18]
The trial court nevertheless convicted the Appellant on the basis
that Accused 1 corroborated Ms Motaung’s evidence.
In this
respect the trial court erred. On Ms Motaung’s evidence Accused
1 was a co-perpetrator. His evidence therefore
had to be
treated with special caution (See
S
v Radloff
[8]
and
S
v Mocke
[9]
)
even when he testified in his own defence (See
S
v Johannes
[10]
and
S
v Dladla
[11]
).
It is clear that the trial court failed to do so.
[19]
Before a trial court convicts on the evidence of an accomplice (or,
even more pertinently, of a co-perpetrator), it must satisfy
itself
as to the merits of the evidence of both accused (See
R
v Ncanana
[12]
).
Accused 1 was a most unimpressive witness. Several material
aspects of his evidence were never put to the State witnesses,
which
adversely impacts on his credibility. His evidence contained
several improbabilities and it was obvious that he was
attempting to
distance himself from the crime. On proper consideration of his
evidence, especially in view of the strong
probability of his being
at least a co-perpetrator, his evidence could not be relied upon to
support a conviction.
[20]
The Appellant disputed the credibility of Ms Motaung and of Accused
1. He maintained that the State did not prove beyond a
reasonable
doubt that he was indeed the perpetrator who killed the deceased. It
is true, of course that the State has the onus
of proving the guilt
of an accused person beyond a reasonable doubt and that there is no
onus on an accused to prove his innocence
[13]
[21]
In my view, although the trial court correctly treated Ms Motaung as
a witness whose evidence was not credible in all respects
and
therefore needed corroboration, the trial court completely failed to
take into account that Accused 1 himself could very well
have been
the perpetrator and as such would have had a strong motive to falsely
shift the blame onto the Appellant.
[22]
Not only did the trial court
in
casu
need
to consider the evidence in totality (See
S
v Chabalala
[14]
)
together with its impressions of the witnesses,
[15]
but it had to keep in mind, throughout (See
S
v Hlapezula
[16]
),
that the ultimate requirement for conviction of an accused is proof
beyond a reasonable doubt upon appraisal of all the evidence
and the
degree of the safeguard applied against a wrong conviction.
[23]
The trial court’s use of the unspecified ‘
certain
similarities’
in the highly
questionable and in my view unacceptable evidence of Accused 1 to
corroborate Ms Motaung’s equally inadequate
evidence failed to
establish the required proof beyond a reasonable doubt to convict the
Appellant of the murder.
[24]
This Court therefore has no other option than to set aside the
Appellant’s conviction.
THEREFORE
I MAKE THE FOLLOWING ORDER:
1.
The appeal succeeds and the conviction and sentence are set aside.
______________________
H
MURRAY, AJ
I
concur.
______________________
C
H G VAN DER MERWE, J
On
behalf of the Appellant: Mr K Pretorius
Bloemfontein
Justice Centre
St
Andrews Street
BLOEMFONTEIN
On
behalf of the Respondent: Adv J H S Hiemstra SC
The
Director of Public Prosecutions
Waterfall
Centre
Aliwal
Street
BLOEMFONTEIN
[1]
2011
(1) SACR 263
(SCA) at para [19]
[2]
1970
(2) SA 643
(A) at 648 E
[3]
Hiemstra:
Criminal Procedure,
supra,
Issue
7 at p. 30-46.
[4]
2008
(2) SACR 595
(C)
[5]
S
v Heslop 2007(1) SACR 46 (SCA) at para [14]. See also S v
Janse van Rensburg
2009 (2) SACR 416
at
paras
[9] to [10].req
[6]
1972
3 SA 766 (A) at 768
[7]
S
v Hassim
1973 3 SA 443
(A) at 456 A – B and R v Dhlumayo
1948
(2) SA 677
(A) at 696 and 705.
[8]
1978
(4) SA 66
(A) at 74
[9]
[2008] ZASCA 80
;
2008
(2) SACR 674
(SCA) at paras [6] – [7]
[10]
1980
(1) SA 531
(A) at 532 - 533
[11]
1980
(1) SA 526
(A) at 529
[12]
Su
pra
at
406
[13]
S
v Moleko 1995 (2) SA 401 (AD).
[14]
2003
(1) SACR 134 (SCA)
[15]
R
v Hlongwane
1959 3 SA 337
(A) at 341A.
[16]
Supra,
at
440G - H