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2012
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[2012] ZANCHC 18
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S v Khoza (K/S35/01) [2012] ZANCHC 18 (8 June 2012)
13
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES /NO
IN THE HIGH COURT OF SOUTH
AFRICA
(Northern Cape High Court, Kimberley)
Case No: K/S35/01
Heard: 04/06/2012
Delivered: 08/06/2012
In the matter between:
KENNETH KHOZA
…..............................................................
Appellant
v
THE STATE
…....................................................................
Respondent
Coram: Kgomo JP; Lacock J et Williams J
JUDGMENT: FULL BENCH
KGOMO JP
The appellant was on 04 December 2001, in the Gariep Circuit Court
held at Upington, convicted by now retired Van der Walt J
of the
murder of Katrina Springbok, a 31 year old woman, who met her death
during the early hours of Sunday 21 January 2001.
He was sentenced
to 20 years imprisonment and now appeals against his conviction
only, with leave of this Court (Bosielo AJP
on 27 September 2007).
The basis upon which Bosielo AJP granted leave to appeal is recorded
as follows:
“
Mr Mashuga, appearing on behalf of the
respondent, conceded that the quality of the evidence that was
tendered against the accused
is such that there is a reasonable
likelihood that another court might come to a different finding. If I
understood him correctly,
he submitted that there is a reasonable
likelihood that another court might accept the appellant’s
explanation that the deceased’s
bloodstains came onto his
trousers at the time when she bled from the nose, could be reasonably
possibly true. This was the argument
that was also presented by Mr
Cloete on behalf of the appellant. Having had the opportunity of
perusing the record of the proceedings
in the court a quo and
listening to the various submissions made by the respective counsel
in this matter, and in particular the
concession made by the state in
this regard, I am of the view that there is a reasonable likelihood
that another court faced with
the same facts might arrive at a
different finding. And it is for that reason that I hereby grant the
appellant leave to appeal
against his conviction to theFull bench of
this division.”
Before us MrP Nagel of Legal Aid South Africa (Kimberley)confined
himself, out of choice, to the Heads of argument prepared by
Adv P J
Cloete.He essentially canvassed the narrow issue couched in para 2
(above). Perhaps correctly so, in that the other aspects
are
peripheral and are either conceded or deemed to be conceded, anyway.
Central to our decision in this appeal is not merely how the
appellant’s light-coloured T-shirt, his pair of dark trousers
and shoes became stained with the deceased’s blood but how it
was established what clothing and shoes he wore on the fateful
morning. Establishing these circumstances is pivotal in that not
only did the appellant vehemently deny wearing them but when
requested by the investigating officer, InspStefanus Van Rooi, to
hand over the clothes he wore the Saturday night/Sunday morning
of
the incident he initially produced a light-coloured pair of trousers
but his wife contradicted him and only then was the
bloodstainedtrousers retrieved from a linen basket. The bloodstained
shoes were unearthed from a maizemeal-bin during a subsequent
search
of the premises. The bloodstained light-coloured T-shirt disappeared
for good. The reason will emanate later.
On Saturday night 20 January 2001 between 23h00 and midnight the
deceased, described as a decent employed lady, and three of
her
girlfriends visited a tavern called The-Place-To-Be, co-owned by the
appellant and Thabo Moncholomi, who testified for the
state. The
women braaied meat supplied by the deceased and had a good time.
After 03h00 the Sunday morning (21/01/2001) when
the deceased was
unable to secure transport or a lift home she ventured the journey
on foot through a treacherous area along
or through a graveyard.
This was, literally, a fatal mistake.
Joyce Ngubane and her male companion, Tom Kura Khetsekile, a
soldier, were from the veryThe-Place-To-Be on their way home. The
route took them past the same cemetery. She heard screams followed
by two gunshots. She hurriedly summoned the police from a
public
phone which, fortunately, was closeby. As she joined her companion,
who apparently kept surveillance, she heard a third
gunshot and
almost contemporaneously saw a man, the shooter, wearing a
light-coloured top and dark pants running towards them.
On spotting
them he beat a hasty retreat. It was around 03h20.
Joyce knew the appellant before the incident. Due to the poor
visibility and the fact that the shooter-fugitive was not in close
proximity for a reliable identification she was unable to confirm
that it was the appellant or to exclude him. However, the visibility
was good enough for her to identify the deceased whom she knew
before. When she and Tom reached the deceased she was already
dead.
It is common cause that Moncholomi was the manager and the appellant
was in charge of the security aspects of their joint-venture.
Moncholomi testified that around 03h20 he delivered some patrons at
their homes with his motor vehicle. Shortly after his return
he
noticed the appellant arriving at the tavern on foot from the
direction of the graveyard. The appellant, whilst outside the
tavern, called Moncholomiout but the latter beckoned him to enter,
which he did.
Moncholomi made the following observations. The appellant looked
flustered and dishevelled. He suspected something untoward.
Appellant wore a whitish T-shirt and dark pants. The T-shirt was
crumpled and creased on the chest area as if someone had grabbed
him. It had bloodstains. Moncholomi asked appellant whether he had
been in a fight. The appellant denied it and said he chased
after
two men who wanted to break into a vehicle. Moncholomi attended to a
matter that required his attention. When he re-joined
the appellant
he noticed that he had rolled up his T-shirt and hooked it behind
his head. As I understand the evidence this would
have left the
appellant barechested (unless he wore a vest). Moncholomi says he
gained the impression that the appellant was
hiding the bloodstains.
A while later the appellant informed Moncholomi that after the
would-be car-thieves had outrun him he traversed the cemetery
and
came across the deceased who had sustained stabwounds. He said he
saw a soldier fleeing the scene.
What is broadly in common, but not quite corroboration at this stage
of the judgment, in the evidence of Joyce and Moncholomi
is the
light-coloured top that the shooter-fugitive wore, the dark pants,
the time of the occurance of the murder and the general
location
from where the appellant came. Joyce testified that there were
strugglemarks on the ground where the deceased’s
body lay
sprawled and Moncholomi described the appellant’s appearance
and clothes as that of a person who had been wrestling.
It has to be
mentioned that Joyce and the appellant saw each other earlier at
The-Place-To-Be. This is common cause, but Joyce
can’t
remember what clothes the appellant had on.
In his plea-explanation the appellant proffered the following
through his legal representative (translated):
“
The accused will also not dispute the
DNA-evidence [results] of the blood emanating from the deceased found
on his trousers and
shoes. However, he will testify that earlier
during the evening there was an occasion during which the deceased
suffered a nosebleed
and this is what explains the manner in which
her blood was splattered (spatsels) on the accused’s clothing.”
Note here that nothing is said in the plea-explanation concerning the
bloodstains on the whitish T-shirt that Moncholomi testified
about
after this explanation.
None of the people at the nightclub saw or was made aware that the
deceased had a nosebleed, except the appellant. Joyce was
not asked,
whether in-chief or in cross-examination, about the nosebleed.
Moncholomi disputed it. The court a quo makes the following
valid
observation (translated):
“
What is, in my view, destructive of the
appellant’s version is the evidence of Oupa who, according to
the accused, stood against
a wall nearby and should have seen the
nosebleed. However, Oupa testified that he observed nothing of the
sort. The deceased’s
companions that evening Ms Joodt, Ms
Springbok and Ms Saaiman, some of whom vouched for the fact that they
never separated [from
each other and the deceased], disclaim the
nosebleed occurrence. If the deceased suffered such affliction,
particularly if it was
as heavy a nosebleed as the accused portends,
one would have expected that if her friends did not see it the
deceased would have
made them aware of it.”
In my view the deceased, as human nature dictates, would have turned
to her friends for assistance. The trial court’s rejection
of
the appellant’s evidence on this aspect cannot be faulted. I
find it unnecessary to deal with how improbable it would
have been
for the appellant’s clothing to have been blood-besmirched in
the manner demonstrated and described by him. The
court a quo,
imbued in the trial, observed this and came to its conclusions. I
defer to that, moreso as there does not seem to
be any demonstrable
misdirection by the Court in this respect.
Insp VanRooi testified that on Tuesday,22 January 2001, he visited
the appellant at his home and, after all the legal formalities
were
ostensibly complied with, asked him for the clothes he had on the
previous night (common parlance for PM to AM). I ignore
for the
moment Van Rooi’s version on the appellant’s shenanigans
and focus on the appellant’s verbatim version
(translated
though):
“
Defence:
Did you invite only Van Rooi[into the house] or both?
---Both.
Court
: Yes. --- When he [Van Rooi]entered he asked for my blue
jeans. I produced my blue jeans. When I did so my wife said: No, that
is not the trousers you had on.
Defence
: Did you speak Afrikaans? --- Yes, we spoke Afrikaans.
She then produced this pair of trousers.
Court
: Who produced the pants? --- My wife.
Defence
: My Lord, for the record he refers to Exhibit 1. ---
He [Van Rooi] asked whether these are the clothes you wore the night
in question?
I said yes.
Court
: Yes. --- He then asked where the T-shirt (skipper) was
that I was wearing. Things were mixed up. I went to look for the
T-shirt.
Court
: Do you talk about the T-shirt? --- Yes. The T-shirt
with the spots (kolle).
Court
: Did he ask for the T-shirt with spots? --- No, he only
asked for the T-shirt that I had been wearing.
Court
: Yes. --- I found the T-shirt. It was green. He then
said he did not want that T-shirt, he is looking for the white
T-shirt.
Defence
: Yes. --- I told him that it [the green T-shirt] was
the one I had on. He then asked for the shoes I was wearing. I then
produced
the shoes. They were dark-brown shoes.”
Under cross-examination the following transpired:
“
State:
Sir, the first time that you became aware of the blood [on the
trousersExh 1] is when the investigating officer approached you?
---
Precisely.
State:
During the course of the evening you did not see the
blood? --- No, I did not notice anything.”
Later –
Still under cross-examination
.
“
State:
He [Van Rooi] asked for your clothing and on your pants he discovered
blood? --- Yes.
State:
Did he ask where the blood came from? --- Yes.
State:
What did you tell him? --- I told him that there was a
fight. When I returned from the fight I became involved with the
deceased.
She had a nosebleed. This may explain the presence of the
blood.
State:
Why would Insp Van Rooi tell the court that your
explanation was that you had sexual intercourse with your girlfriend,
but she
experienced her menstruation cycle? --- No, I never said
anything like that.
State:
Van Rooi agrees with you concerning your explanation
about a fight. Why would he suddenly differ with you concerning the
girlfriend.
--- I don’t know.”
The following emanated from the questions by the court:
“
Court:
But
when you noticed the bloodstains on your pants, you now know that the
deceased lies dead, did it not strike you immediate that
the blood
must emanate from the deceased’s nosebleed that evening? ---
That is why I did not get rid of the pants or washed
it. I did
nothing to it.
Court
: What do you say? --- It did not cross my mind that I
was involved with the deceased, otherwise I would have gotten rid of
the
trousers.
Court
: Would you have disposed of it? --- Yes.”
From what was elicited, fairly, from the appellant’s own mouth
as reflected above it leaves no doubt in my mind that the
only
reason why he retained his bloodstained pants was because he was
unaware of the bloodstains thereon. It took his wife, he
says, to
produce the stained pants he tried to conceal. This was also Van
Rooi’s version for the state before appellant
testified. Van
Rooi also testified that he retrieved the appellant’s
bloodstained dark-brown shoes from a maizemeal-bin
on a subsequent
visit. They were evidently concealed. Is it any wonder then that the
appellant made the bloodstained white T-shirt
disappear?
In this respect as well I am satisfied that the trial court’s
conclusions are correct.
Based on the aforegoing discussion there is only one reasonable and
irresistible inference to be drawn on how the appellant’s
clothes and shoes were contaminated with the deceased blood: he was
in contact with or in touching distance of the deceased at
the scene
of the murder. This conclusion accords with the cardinal Rules of
Logic propounded in
R v Blom
1939 AD at 202 –
203; and
S v Reddy
1996(2) SACR 1 (A) at 8c – 9e.
It is convenient at this stage to deal briefly with the injuries
sustained by the deceased as recorded by Dr Jurgen Kotze Eksteen
who
performed the post-mortem on the deceased’s body and also
testified in court. I advert only to the chief findings and
the
cause of death as recorded in the report which were formally
admitted by the appellant:
“
(iv) dat die
vernaamstelykskouingsbevindings in verband met hierdieliggaam die
volgende was:
I 1. D
ie liggaam van `n kleurling
vet en sterkvrou met lang swart hare.
2. `n
K
oëlingangwond
in die laeragerterkop net bokant die nek, en dwarsdeur die laerbrein
basis en uitgangwond is regswaar die koëlgevind
is net onder die
vel.
3. D
ie skedel en skedelbasis en oë
is volsandgrond.
II Viersteekgate is gevind in die linker mamma (bors).
1. In die linker mamma weefsel 8cm diep en 2cm lank. 2. en 3. Twee
steekgatedeur die medialelaerborsweefsel en tussen die 4de en
5de
ribbesdeur tot dwarsdeur die hart se onderpunt 2½ cm van
onderaf.
4. `n Steekwond in die vouonder die linker bors2cm lank en 13cm
diepdeur die laerborsholte en die diafragma tot net in die
bo-buikholtewonde2.
en 3. Is altwee14cm diep .
III Linker borsholte en hartsak is gevul met bloed.
IV. Twee stukkiesvel is oppervlakkigafgesny in linker handpalm en
duim.
(v) dat, as gevolg van my waarnemingswaarvan `n
lyshierondervolgekbesluit het: -
(a) dat die dood 3,141 voor my ondersoekplaasgevind het, en
(b) dat die oorsaak van die dood
1. `nSteekwond met bloedverliesdwarsdeur die hart.
2. Waarskynlikdaarna `n koëlskietgatdwarsdeur die skedel en
brein van agternavoor”
On all probabilities this is where and partly how the appellant came
in contact with the deceased’s blood. Importantly,
both the
stab-wounds and the gunshot wound were fatal. The injuries on the
palm of the hand and thumb are defensive wounds. The
deceased in all
probability grabbed the appellant by his white T-shirt with the
bloodied hand. Photo 3 and 4 of Exhibit “B”,
the photo
album, depicts the struggle marks on the ground. Those aspects of
the evidence is what makes Moncholomi’s evidence
more
understandable and credible. This is what Moncholomi observed in the
tavern.
The knife or sharp instrument with which the deceased was stabbed
has not been found. However, the firearm from which the fatal
wound
was fired, back-to-front, through the deceased’s head was
traced to the safe of The-Place-To-Be, the nightclub and
joint-venture conducted by the appellant and Moncholomi. Moncholomi
states that the firearm belongs to a patron who lodged it
with them
for safekeeping several weeks prior to the incident but never
fetched it. He says that the appellant took possession
of the weapon
a few days before the murder and only returned it a day or so after
the murder when he prevailed upon him. The
appellant was reluctant
to restore it. When he finally did, it was oily and not properly
assembled. Any gunpowder residue would
have been removed or
destroyed.
The appellant denies that he handled the firearm at any stage. He
says, on the contrary, he only became aware thereof after the
death
of the deceased when the police confiscated it. The trial court
correctly rejected appellant’s testimony on this
aspect
because the appellant’s own witness, Mr Jack Daniels, an
employee at The-Place-To-Be corroborates Moncholomi’s
evidence
that the appellant had handled the firearm regularly before the
incident.
A spent cartridge which was found on the crime-scene was
ballistically proven to have been fired from the firearm, Exhibit 2,
which was jointly kept by the appellant and Moncholomi. There is a
dispute on how the police discovered that this firearm was
the
murder weapon. Moncholomi says that Van Rooi phoned him after he
gleaned some information from the appellant concerning the
firearm.
Van Rooi says it was Moncholomi who initiated the subject. If
Moncholomi broached the subject first there would be nothing
untoward or suspicious about him (Moncholomi) having regard tohis
earlier evidence relating to the appellant’s conduct,
his
besmirched clothes and his previous possession of the firearm.
The trial court has approached Moncholomi’s evidence with
caution and only accepted it where corroboration existed or where
factors were present reducing the risk of a wrong conviction. Joyce
corroborated Moncholomi’s evidence concerning the shooter
with
the white top. The firearm which Joyce heard discharged and a spent
cartridge fired from it was linked to the appellant.
The appellant
was in contact or close contact with the deceased when and where she
was murdered in the cemetery. I cannot fault
the court a quo’s
reasoning that the accused’s “false explanation on how
the blood landed on his pants is a
factor that weighs heavily
against him and which also serves as corroboration for his
involvement in the murder.”
Even if it could be suspected that Moncholomi was involved in the
murder, the evidence does not justify such suspicion, it must
be
added, such a factor could merely be indicative that the two were
complicit in the murder. No benefit would redound to the
appellant.
I am satisfied that the state proved its case beyond a reasonable
doubt. The appellant’s counsel could not persuade us
to any
misdirection or material misdirection by the trial court. Those
findings must therefore be accepted to be correct and
have to remain
undisturbed. The court’s assessment is in line with the
salutary approach adopted by the Supreme Court of
Appeal in
S
v Chabalala
2003(1) SACR 134 (SCA) at 139i – 140b
(para 15) whereat
Heher AJA
states:
“
[15] The trial court's approach to the case
was, however, holistic and in this it was undoubtedly right: S v Van
Aswegen
2001
(2) SACR 97
(SCA)
. The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are
indicative of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both
sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable
doubt about the
accused's guilt. The result may prove that one scrap of evidence or
one defect in the case for either party (such
as the failure to call
a material witness concerning an identity parade) was decisive but
that can only be an ex post facto determination
and a trial court
(and counsel) should avoid the temptation to latch on to one
(apparently) obvious aspect without assessing it
in the context of
the full picture presented in evidence. Once that approach is applied
to the evidence in the present matter the
solution becomes clear.”
It concerns us deeply that it took 10 years and six months since the
appellant’s conviction on 04 December 2001 to reach
this
stage. Leave to appeal was granted on 27 September 2007. The appeal
was set down for hearing in August 2010. Portions of
the record were
reconstructed consequent upon the order of the panel of judges
before whom the appeal was placed. This is an
unsatisfactory state
of affairs. All that need to be said at this stage is that there is,
as it turns out, no prejudice to the
appellant in that his appeal
has failed.
I feel constrained to make the following observation. The deceased
was murdered in cold blood. This was a murder accompanied
by
aggravating circumstances. The appellant has a previous conviction
of murder for which he was sentenced to 12 years imprisonment.
I
cannot fathom how he escaped the ultimate sentence – Life
Imprisonment. We could not increase the sentence on Notice
to the
Appellant as he did not appeal his sentence. The state, by not
appealing the sentence, failed the family of the deceased
and
society in general. See
S v Matyityi
2011(1) SACR 40
(SCA) at 50(a) – 54(b) paras 18 – 24.
In the result the appeal must fail. The following order is made:
The appeal is dismissed.
__________________________
F DIALE KGOMO
JUDGE-PRESIDENT
Northern Cape High Court,
Kimberley
I concur
__________________________
H J LACOCK
JUDGE
Northern Cape High Court,
Kimberley
I concur
__________________________
C C WILLIAMS
JUDGE
Northern Cape High Court,
Kimberley
On behalf of the Appellant
:
AdvP NAGEL
Instructed by: Legal Aid South Africa
On behalf of the First Respondents
:
AdvT E BARNARD
Instructed by: Director Public Prosecutions