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[2013] ZAFSHC 52
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Mponeng v S (A269/12) [2013] ZAFSHC 52 (28 March 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A269/12
In
the appeal between:-
SHADRACK
MPONENG
..........................................................
Appellant
and
THE STATE
.........................................................................
Respondent
_____________________________________________________
CORAM:
C J
MUSI, J
et
MOLOI, J
_____________________________________________________
HEARD ON:
11 MARCH 2013
_____________________________________________________
DELIVERED ON:
28 MARCH 2013
_____________________________________________________
JUDGMENT
_____________________________________________________
K.J. MOLOI, J
[1] This is an appeal
against the conviction and sentence imposed by the magistrate. The
appellant was convicted of murder and kidnapping
and sentenced to 15
(fifteen) years imprisonment and 3 (three) years imprisonment,
respectively. The sentences were ordered to
be served concurrently.
The trial court granted the appellant leave to appeal.
[2] The evidence of the
State was that on 17/18 March 2007 at Kutlwanong in Odendaalsrus the
appellant pulled the deceased, Serialong
Mirriam Morothodi, from her
boyfriend, Tamsanqa Wabonga, as they entered TNT tavern and left with
her. At a later stage the appellant
sought assistance from his
relative, Morepo Benson Litheko, to go and look for the deceased.
They found her in a veld where she
was lying and her head and face
were full of blood. The appellant and the said Litheko took the
deceased in a wheelbarrow to Litheko’s
house. The appellant
later brought a blanket and a pillow to cover the deceased. The
appellant did not contact the police until
one Simphiwe arrived at
the scene with him, and the police were contacted telephonically and
arrived promptly at Litheko’s
house where they found the
deceased and called emergency services to remove the body of the
deceased.
[3] The appellant took
the police to the scene where the deceased was found and the
appellant told them what led the deceased to
be at that point in the
veld. According to the appellant the deceased was his girlfriend and
they had arranged to meet at TNT tavern
that evening from where they
would go to his grandfather’s house to sleep. They found the
grandfather awake and the house
lit. As a result they moved to the
place where lovers meet. There they were confronted by four men, two
of whom attacked him while
the other two attacked the deceased. He
got loose and ran to Litheko’s house for assistance. He went
back to the scene with
Litheko where they then moved the deceased to
Litheko’s house. This version was also given in his plea
explanation, repeated
to Litheko and the police when they arrived at
Litheko’s house.
[4] According to Litheko
when the appellant arrived at his house for the first time the
evening, his shirt was already blood-stained
and it was later
established through DNA tests that the bloodstains on the appellant’s
shirt matched the deceased’s
blood. According to the appellant
the bloodstains got onto his shirt when he lifted the deceased and
placed her on the wheelbarrow.
According to Wabonga the appellant
pulled away the deceased from him (he and the deceased were holding
hands) and he only followed
them for a short distance and stopped.
The appellant was a police reservist, but went from one place to
another without calling
the police.
[5] In its judgment the
trial court found it improbable that the appellant and the deceased
had an appointment to meet at the tavern
after accepting that Wabonga
was, indeed, in a relationship with the deceased and saw the
appellant taking her away at the tavern.
The magistrate found that
the appellant’s version was improbable (onwaarskynlik),
contradictory (self-weersprekend) and unconvincing
(onoortuigend). He
rejected the appellant’s version that he and the deceased had
agreed to meet that evening and that where
the appellant and deceased
were confronted by four men, they were discussing their problems. The
magistrate rejected the explanation
by the appellant as to how the
deceased’s blood got onto his shirt. He found it surprising
(uiters verstommend) why the appellant
failed to call the police
before Simphiwe arrived and occupied himself with moving around
(staptog). He further found that the
attack on the appellant and the
deceased was unusual and he had never come across such an attack in
the twenty years of him presiding
in cases. He further found that the
type and number of injuries inflicted on the deceased could only be
caused by a jealous lover.
He concluded that the appellant’s
version was improbable (onwaarskynlik) and was lying seriously (erg
leuenagtig) and therefore
rejected it as not reasonably possibly
true.
[6] In assessing the
evidence the court must consider all the evidence placed before it:
S
v Van der Meyden
1999 (1) SACR 447
(W);
S v Radebe
1991 (2) 166 (T). It must also be borne in mind that there was no
onus on the appellant to prove his innocence, while the State
had an
onus to prove its case beyond a reasonable doubt:
S v Van der
Meyden
,
supra
. Where the appellant gave an explanation
and this explanation was reasonably possibly true, the court must
acquit:
R v Difford
1937 AD at 370. The court must be
satisfied that the accused’s explanation is not only improbable
but that it is beyond a
reasonable doubt false –
R v
Matsoso
1950 (4) SA 178
(O) at 185F – H. In
R v
Difford
,
supra
, it was held:
“
It is
equally clear that no onus vests on the accused to convince the Court
of the truth of any explanation he gives. If he gives
an explanation,
even if that explanation be improbable, the Court is not entitled to
convict unless it is satisfied, not only that
the explanation is
improbable, but that beyond any reasonable doubt, it is false. If
there is any reasonable possibility of his
explanation being true
then he is entitled to his to his acquittal.”
In
R v M
1946 AD 1023
at 1027 it was held:
“
And, I
repeat, the Court does not have to believe the defence story: still
less has it to believe it in all its details, it is sufficient
if it
thinks that there is a reasonable possibility that it may be
substantially true.”
Great emphasis was placed
on the appellant’s lies he told. In
S v Burger and Others
2010 (2) SACR 1
(SCA) at par 30 it was stated:
“
While lies
together with other acceptable evidence might in some cases prove an
accused’s guilt, courts should be careful
to decide against an
accused merely as punishment for untruthful evidence.”
[7] According to Litheko,
when the appellant arrived at his house that evening, his
(appellant’s) shirt was already blood-stained.
The blood on his
shirt later proved to be that of the deceased. According to the
appellant the deceased’s blood must have
got to his shirt when
he and Litheko carried her onto the wheelbarrow and conveyed her to
Lithekos’house. This is disputed
by Litheko who said that he
picked up the deceased on her head side where the blood was and the
appellant picked her up on her
feet end where there was no blood and
thus the blood could not have got onto his shirt. Though it was
conceded that the appellant
had scratch marks similar to those that
may be caused when one fell in a soccer game, those could not have
stained the appellant’s
shirt the way it was. Furthermore,
according to the appellant he ran towards Litheko’s house when
he freed himself from his
two attackers without having been to the
deceased where she was accosted by the other two attackers.
[8] It is inexplicable
why the appellant who was a police reservist avoided seeking
assistance from the police immediately he freed
himself from his two
attackers. According to him his cellular telephone’s battery
suddenly got flat after he called a friend,
and he could thus not
make calls. Even when his relative Simphiwe, who had a cellular
telephone, arrived at the scene he did not
ask him to call the police
until he (the appellant) was asked by Litheko to use Simphiwe’s
cellular telephone to call the
police. From the evidence it is clear
that the scene where the deceased was found was not far from the
police station and could
be reached with ease hence the police
arrived promptly at Litheko’s house when called eventually.
[9] The magistrate
rejected the appellant’s version as not reasonably possibly
true, but implicit in his rejection was the
fact that the version
advanced by the appellant was false beyond all reasonable doubt. I
also hold that view.
[10] As a consequence the
appeal against both the convictions and sentences must fail and the
appeal is dismissed.
____________
K.J. MOLOI, J
I concur and it is so
ordered.
___________
C.J. MUSI, J
On
behalf of appellant: Mr J.D. Reyneke Instructed by:
Legal
Aid Board BLOEMFONTEIN
On
behalf of respondent: Adv R. Hoffman
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/spieterse