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[2012] ZAFSHC 116
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Mokhahla v S (A59/2012) [2012] ZAFSHC 116 (14 June 2012)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
APPEAL NO:A59/2012
In
the matter between:
JONAS PHAHLA
MOKHAHLA
….......................................
APPELLANT
AND
THE STATE
….................................................................
RESPONDENT
CORAM:
C.
J. MUSI, J et MURRAY, AJ
JUDGMENT BY:
C.J. MUSI, J
_____________________________________________________
HEARD ON:
21 MAY 2012
DELIVERED ON:
14 JUNE 2012
[1] On 23 May 2009 at
approximately 06H00 Constable Selwin Seisa was fatally wounded in
front of the Tumahole Community Service
Centre.
[2] Constable Jonas
Phahla Mokhahla (the appellant), was subsequently convicted of his
murder and sentenced to 12 years imprisonment
of which 4 (four) years
imprisonment was suspended for 5 (five) years on certain conditions.
He appeals, with leave of the court
a
quo
, against the
conviction and sentence.
[3] On this fateful
morning Constable Tladi was supposed to drive his two colleagues (the
deceased and Constable Thwane) and Mr.
Steward Malili (Malili), a
prospective witness, home in an official police double cab pick-up.
Thwane was seated on the left front
seat; the deceased was seated
behind Thwane, i.e. on the left rear seat and Malili was on the right
rear seat. The appellant who
handed over the pick-up’s keys to
Tladi was standing next to the right front door.
[4] Tladi inspected the
vehicle and saw peanut skins on the driver’s seat. He then said
the peanut skins on the seat indicate
that the appellant drove the
vehicle. The appellant then jokingly hit him with his hand on his
thigh. The deceased then said “Yes
Mr Peanuts” or “we
know that Mokhahla is Mr Peanuts” or words to that effect.
Everyone except the appellant laughed.
[5] According to Malili,
the appellant inserted the magazine into the firearm, pointed the
firearm at the deceased, by putting his
hand with the firearm in it
behind the driver’s seat, and fired a shot which fatally
wounded the deceased. The appellant
then said “Seisa”. He
(Malili) saw that the appellant looked confused.
[6] Tladi and Thwane
testified that they did not hear the appellant’s firearm being
cocked or the magazine being inserted
in the firearm. They also did
not see how the deceased was shot because they were talking to each
other at that moment.
[7] Warrant Officer
Motsoeneng testified that on 23 May 2009 he was the commanding
officer at the Tumaholi Community Service Centre.
He confirmed that
they received a complaint about an armed robbery and that the
appellant and other police officers were on the
look-out for the
suspects. He confirmed that, depending on the circumstances, it would
not be unusual for a police officer to carry
his firearm with a
bullet in the chamber while searching for armed suspects. He
confirmed that the police officers had to stand
at a parade before
going off duty. He further testified that before the parade all
police officers must ensure that their firearms
are safe, i.e.
removing bullets, if any, from the chamber. He confirmed that the
incident happened after the parade.
[8] The State handed in a
ballistic report which indicated that the appellant’s firearm
“functioned normally without
any obvious defects.”
[9] The appellant elected
not to testify.
[10] The regional
magistrate accepted the evidence of the State witnesses and found
that the State had proved beyond reasonable
doubt that the appellant
had the necessary intention, in the form of dolus eventualis, to
murder the deceased.
[11] Mr Van Rensburg on
behalf of the appellant, argued, before us, that the regional
magistrate should have convicted the appellant
of culpable homicide
and not murder. He submitted that there was sufficient evidence on
record to reach the conclusion which he
advanced. According to him,
the fact that Malili saw that the appellant looked confused and the
fact that the appellant called
the deceased’s name after the
shooting clearly indicates that the appellant was negligent.
[12] The regional
magistrate made the following factual findings:
“
12.1. That
there was a bullet in the chamber of the firearm when the deceased
was shot.
12.2. That the appellant must have
cocked the firearm before the shooting but in all probability when
they were searching for the
robbers.
12.3. That the appellant was aware
that the firearm was cocked and that there was a bullet in the
chamber.
12.4. That the appellant did not
ensure that his firearm was safe before the parade.
12.5. That the appellant did not check
whether the safety catch of the firearm was on or not.
12.6. That he pointed the firearm in
the direction of the deceased.
12.7. That the firearm was functioning
perfectly.
12.8. That the appellant pulled the
trigger.
12.9. That the appellant foresaw that
if he pulls the trigger a shot might be fired and wound the deceased
or someone in the vehicle.
12.10. That he recklessly accepted the
bargain and fired a shot.”
[13] Mr Van Rensburg did
not criticise any of the regional magistrate’s factual
findings. He however pointed out that the
regional magistrate’s
inference is not the only reasonable inference that can be drawn from
the facts. According to him the
inference that the appellant acted
negligently is plausible and reasonable given Malili’s
evidence.
[14] It is trite that a
court of appeal will not lightly interfere with the factual findings
of the trial court. It will only do
so if the trial court has
misdirected itself or has overlooked other facts or probabilities.
Where there has been no misdirection
on fact the presumption is that
the trial court’s conclusion is correct. Likewise if this court
is merely left in doubt as
to the correctness of the trial court’s
conclusion, it must uphold it.
See Rex v Dhlumayo and Another
1948 (2) SA 677(AD)
at 705 – 706
.
[15] Malili’s
evidence that the appellant looked confused is not incompatible with
a finding of dolus eventualis; for example,
the appellant might have
looked confused because he wanted to shoot through the window where
the deceased was sitting but shot
at and wounded the deceased
instead. Under these circumstances the finding that he foresaw and
recklessly accepted the bargain
would still be justified. Put
differently, a confused look or expression does not negate a finding
of dolus eventualis because
the result is not his main aim. The same
applies to him calling out the deceased’s name after the shot
was fired.
[16] Although the
appellant did not testify, there are discrepancies in his plea
explanation and the evidence that he gave under
oath during his
disciplinary inquiry. The proceedings of the disciplinary inquiry
were handed in by the appellant’s legal
representative in an
attempt to discredit Malili. Mr Van Rensburg correctly conceded that
the inconsistent statements made by the
appellant during those
proceedings are admissible against the appellant in these proceedings
because the appellant handed in those
proceedings without reserve and
unconditionally.
[17] During the plea
proceedings the appellant’s legal representative said the
following:
“
Die verweer
is inderdaad dat beskuldigde die vuurwapen nalatiglik afgevuur het,
die skoot is afgevuur weens sy nalatige hantering
van die vuurwapen
as te ware (sic) wat dan inderdaad neerkom op ‘n pleit van
skuldig op strafbare manslag.”
[18] The regional
magistrate, in order to clarify the situation and to record the
correct admissions, then said the following:
“
Hof: Goed,
ek gaan dit maar soos volg probeer notuleer. As een van die partye
nie eens is met die wyse waarop ek dit notuleer nie
neem tog die
vrymoedigheid om my so mee te deel. Goed, ingevolge
Artikel
220
van
die Strafproseswet 51 van 1977 word die volgende dan as formele
erkennings genotuleer, 1, dat die identiteit van die oorlendene
Selwyn Seisa is: 2, dat daar op 23 Mei 2009 en te Parys in die
streekafdeling Vrystaat ‘n voorval plaasgevind het waartydens
die oorledene noodlottig beseer is deur ‘n skoot wat afgevuur
is deur die beskuldigde: 3, dat die oorledene geen verdere
besering
opgedoen het vanaf die voorval plaasgevind het en tot dat daar ‘n
regsgeneeskundigelyskouing op hom uitgevoer is
nie op die 26ste Mei
2009.”
[19] The appellant did
not object to the admission the he fired a shot.
[20] During the
disciplinary inquiry, he testified, in his evidence in chief, that:
“
Constable
Tladi was about to inspect vehicle and I said “I was driving
and there were no problems” as we usually do.
He then said one
could see by the peanuts that I was driving. I came to him and patted
him on thigh and commented that we all eat
peanuts. We all laughed I
said to Constable Thwane I will see them on next Thursday. When I
turned I remembered my firearm was
not made safe and decided to make
it safe. When I took it out it went off. I was amazed and when I
looked into the car Constable
Tladi was leaning forward and I saw
Constable Seisa was leaning to the right and I called him…”
(Quoted
without emendation).
[21] During
cross-examination, the following is recorded:
“
Question
:
Let’s go to where the shot was fired did you fire a shot at the
deceased or what happened?
Answer
: As I have explained I
did not fire any bullet, the firearm discharged a bullet when I took
it out of the holster.”
[22] Later during
cross-examination he testified as follows:
“
Question
:
In your evidence in chief you stated, you remembered your firearm was
on fire and you wanted to make it safe?
Answer
: In my testimony I said
I wanted to certify/check whether on which condition.
Question
: In other words you
were not making it safe?
Answer
: Yes just to ensure that
if not safe then I make it.
Question
: Was it safe to do so?
Answer
: Yes
Question
: If it was safe how it
happened that a round was then fired and hit Seisa?
Answer
: That I cannot say, I
don’t know how it happened.
Question
: You agreed that a
round came from your gun?
Answer
: Yes we agreed but not
where it was directed…”
[23] It is clear that the
appellant’s evidence during the disciplinary inquiry is
inconsistent with the admission that he
made during the trial. The
appellant’s version during the disciplinary inquiry is also
inconsistent with the accepted evidence
of Malili that he pointed the
firearm at the deceased and fired a shot.
[24] The appellant’s
problem is compounded by the fact that his version was never put to
any of the State witnesses. The appellant‘s
legal
representative went on a fishing expedition hoping that evidence
favourable to the appellant will be volunteered or elicited
from the
State witnesses.
[25] Malili explicitly
implicated the appellant. No version, at all, was put to Malili. In
S
v Boesak 2000(1) SACR 633 (SCA)
at paragraph 50 – 52
it is stated that:
“
[50] In
the context of the dispute now under discussion, i.e. proof of the
authenticity of the letter of 30 March 1988, but also
in the wider
context of the outcome of this appeal and the conduct of the defence
in the trial Court, it is clear law that a cross-examiner
should put
his defence on each and every aspect which he wishes to place
in issue, explicitly and unambiguously, to the witness
implicating his client. A criminal trial is not a game of
catch-as-catch-can, nor should it be turned into a forensic ambush.
[51] In this respect, we are in full
agreement with the comments made by the Constitutional Court in
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
2000 (1) SA 1
(CC) at
E
36J-37E.
'[61] The
institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As
a general rule it is essential,
when it is intended to suggest that a witness is not speaking the
truth on a particular point,
to direct the witness's attention to the
fact by questions put in cross-examination showing that the
imputation is intended to
be made and to afford the witness an
opportunity, while still in the witness-box, of giving any
explanation open to the witness
and of defending his or her
character. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness
is entitled to
assume that the unchallenged witness's testimony is accepted as
correct. This rule was enunciated by the House of
Lords in
Browne
v Dunn
(1893) 6 R 67 (HL) and has been adopted and consistently
followed by our Courts.
[62] The
rule in
Browne v Dunn
is not merely one of professional
practice but 'is essential to fair play and fair dealing with
witnesses'. [See the speech of
Lord Herschell in
Browne v Dunn
,
above] . . .
[63] The
precise nature of the imputation should be made clear to the witness
so that it can be met and destroyed
. . . particularly where the
imputation relies upon inferences to be drawn from other evidence in
the proceedings. It should be
made clear not only that the evidence
is
to be challenged but also
how
it is to be
challenged. This is so because the witness must be given an
opportunity to deny the challenge, to call corroborative
evidence, to
qualify the evidence given by the witness or others and to explain
contradictions on which reliance is to be placed.'
[52] The rule stated by
the Constitutional Court applies also to the challenging of all
evidence adduced by the counter-party, whether
on the basis of
hearsay, inadmissibility or lack of proof of authenticity, accuracy,
etc.”
[26] The appellant did
not testify. In
S v Boesak
[2000] ZACC 25
;
2001 (1) SACR 1
(CC)
at
paragraph 24 Langa DP, as he then was, said the following in this
regard:
“
[24] The
right to remain silent has application at different stages of a
criminal prosecution. An arrested person is entitled to
remain silent
and may not be compelled to make any confession or admission that
could be used in evidence against that person.
It
arises again at the trial stage when an accused has the right to be
presumed innocent, to remain silent, and not to testify during
the
proceedings. The fact that an accused person is under no
obligation to testify does not mean that there are no consequences
attaching to a decision to remain silent during the trial. If there
is evidence calling for an answer, and an accused person chooses
to
remain silent in the face of such evidence, a court may well be
entitled to conclude that the evidence is sufficient in the
absence
of an explanation to prove the guilt of the accused. Whether such a
conclusion is justified will depend on the weight of
the evidence.
What is stated above is consistent with the remarks of Madala J,
writing for the Court, in
Osman
and Another v Attorney-General, Transvaal
,when
he said the following:
'Our
legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a
prima
facie
case,
an accused who fails to produce evidence to rebut that case is at
risk. The failure to testify does not relieve the prosecution
of its
duty to prove guilt beyond reasonable doubt. An accused, however,
always runs the risk that, absent any rebuttal, the prosecution's
case may be sufficient to prove the elements of the offence. The fact
that an accused has to make such an election is not a breach
of the
right to silence. If the right to silence were to be so interpreted,
it would destroy the fundamental nature of our adversarial
system of
criminal justice.'”
[27] As stated above the
appellant did not testify or put his version to the State witnesses,
specifically Malili. He cannot expect
the court a
quo
or this
court to base its findings on speculation and conjecture when there
is clear, unambiguous, uncontroverted and acceptable
evidence
pointing to his guilt.
[28] In
S v Sauls
and Others
1981 (3) SA 172
(AD) at 182 Diemont JA said the
following:
“…
all
sorts of fanciful motives for his conduct may be suggested. The State
is, however, not obliged to indulge in conjecture and
find an answer
to every possible inference which ingenuity may suggest any more than
the Court is called on to seek speculative
explanations for –
conduct which on the face of it is incriminating. And when the
accused misleads the court by lying, arguments
based on improbable
inferences are not calculated to impress a trial judge.”
See
also
S
v Rama
1966
(2) SA 395
A at 401.
[29] The appellant took a
calculated risk not to testify or put his version to the State
witnesses. His motives and state of mind
when he pointed the firearm
and pulled the trigger was, like his state of digestion, patent only
to himself. If an accused decides
not to take the court into his
confidence and tell the court what went on in his mind or when he
lies about what actually happened
or when he deliberately gives a
version that is inconsistent with the proved or acceptable facts he
cannot claim a benefit in his
favour when the evidence clearly
indicates that he committed the offence.
[30] Snyman, in Criminal
Law 5
th
Ed at page 184 defines
dolus eventualis
as
follows:
“
A person
acts with intention in the form of
dolus
eventualis
if the commission of the unlawful act or the causing of the unlawful
result is not his main aim, but:
He subjectively foresees the
possibility that, in striving towards his main aim, the unlawful act
may be committed or the unlawful
result may be caused, and
He reconciles himself to this
possibility.”
[31] The person must
“consent” to the foreseen consequence and must reconcile
herself/himself to it or he/she must take
it into the bargain. See
S
v Ngubane
1985 (3) SA
677
(AD) at 685 C-E.
[32] On the facts of this
case it is clear that the only reasonable inference is that the
appellant foresaw the possibility of him
shooting the deceased. He
pointed the firearm at the deceased or, at best for him, in the
direction of the deceased and he reconciled
himself with the
possibility by voluntarily pulling the trigger. He willed the act and
resigned himself to the possibility of harm.
See
W Bertelsman
.
What happened to Luxuria? Some observations on Criminal Negligence,
Recklessness and
Dolus Eventualis
1975 SALJ vol 92 page 59 at
page 74.
[33] The regional
magistrates’ reasoning and findings are unassailable. The
appeal ought to be dismissed.
[34] Although there is an
appeal against the sentence as well, Mr Van Rensburg conceded that
the regional magistrate was lenient.
He advanced no argument on why
we should interfere with the sentence.
[35] The appellant was 31
years old, married and the father of one minor child. He was a first
offender. He was a police officer
and earned R7800-00 per month.
[36] The regional
magistrate found in the appellant’s favour that he shown
remorse because he admitted to killing the deceased
negligently
although he did not specify the nature and extent of his negligence.
He appreciated the difficulty that he was faced
with based on the
unique facts of this matter. He accepted that there was no
confrontation between the appellant and the deceased.
He was however
of the view that the recklessness and irresponsible manner in which
the deceased was killed called for a custodial
sentence.
[37] The regional
magistrate found that there were substantial and compelling
circumstances. Having made that finding he correctly
applied his mind
and imposed an appropriate sentence.
[38] In my view there is
no irregularity or misdirection and the sentence is not shockingly
inappropriate. There is no ground upon
which we can and should
interfere with the sentence.
[39] I accordingly make
the following order:
1. The appeal is
dismissed.
___________
C.J. MUSI, J
I
concur
___________
MURRAY,
AJ
On
behalf of the Appellant: Adv. T. B. VAN RENSBURG
Instructed
by: Jacques Groenewald Attorneys
KROONSTAD
9500
On
behalf of the Respondent: Adv. A. BESTER
Instructed
by: Director of Public Prosecutors
Ground
Floor
Waterfall
Centre
/ar