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[2009] ZAGPPHC 6
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Makua v S (A1117/07) [2009] ZAGPPHC 6 (23 March 2009)
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTH AND SOUTH GAUTENG HIGH
COURT, PRETORIA)
Date: 2009-03-2
3
Not reportable
Case Number:
A1117/07
In the matter between:
MOTHOKGANE
PHILLEMON MAKUA
Appellant
and
THE STATE
Respondent
JUDGMENT
SOUTHWOOD J
[1]
On
2 February 2006 the appellant was found guilty of murder and
malicious damage to property in the Middelburg Circuit Court (Smit
J) and on 3 February 2006 the appellant was sentenced to 15 years
imprisonment for the two offences which were taken together
for
purposes of sentence. The appellant unsuccessfully applied for
leave to appeal against the convictions. With the leave
of the
Supreme Court of Appeal the appellant appeals to this court against
the convictions.
[2] On appeal the
appellant’s counsel contends that the state did not prove
beyond reasonable doubt that the appellant committed
the crimes.
The appellant’s counsel argues that the single witness who
testified that he saw the appellant shoot and kill
the deceased was
not a credible and reliable witness and that the alleged
pointing-out by the appellant of the deceased’s
body and the
burnt out motor vehicle were not sufficient corroboration to justify
the convictions.
[3] It is common cause that –
(1) In September
2004 the state witness, Justice Moloka, the appellant and Freddy
Poshiwa, the deceased, were all employed
by Great North Transport
Company (Great North) at Burgersfort, Moloka and the appellant as
bus drivers and the deceased as
a supervisor;
(2) On 23 September
2004 Mr. Thabane Lesese of Great North
found
that the appellant had not issued tickets properly and was driving
the bus without a waybill and that on 29 September 2004
the deceased
handed to the appellant a letter informing him, the appellant, of his
suspension pending a disciplinary enquiry;
(3) On 29 September
2004 the appellant wa
s
immediately replaced as driver by Moloka and that Moloka also became
entitled to the accommodation used by the appellant;
(4) On 29 September 2004 the deceased
drove in Great North’s LDV to the appellant’s
accommodation where the deceased
had arranged to meet Moloka at the
end of his, Moloka’s, shift;
(5)
On
30 September 2004 the deceased’s badly burned body was found in
a hole in the ground some 160 km (or 2 hours’ drive)
from
Burgersfort and Great North’s burnt out LDV approximately 1 km
away, standing in the veldt;
(6) On 30 September
2004 the appellant accompanied two members of the SAPS, Sergeant
Motswana and Sergeant Morema
,
who both became state witnesses, to the place where the deceased’s
body and Great North’s LDV were found and that
photographs were
taken of the appellant next to the deceased’s body and Great
North’s LDV;
(7) The
post
mortem medical examination established that the deceased died as a
result of a gunshot wound to the neck.
[4] Three witnesses
testified for the state and the appellant testified in his defence.
In brief outline the evidence was as follows:
Moloka testified that
after the appellant’s suspension he, Moloka, drove the
appellant’s bus until the end of his
shift. He met the
deceased who had come to collect him in Great North’s LDV.
The appellant was also present. The three
men got into the LDV and
started to drive off when the appellant told the deceased, who was
driving, to pull off the road and
stop. The three men were all
sitting in the cab, the appellant in the left hand passenger seat,
the deceased in the right hand
seat but behind the steering wheel
and Moloka in the middle. A short conversation ensued between the
appellant and the deceased
which culminated in the appellant
shooting the deceased in the head. The appellant pushed the
deceased’s body across the
seat to the left hand passenger
seat and got behind the steering wheel. Moloka got onto the back of
the LDV and the appellant
drove him home. The appellant then drove
off in the vehicle with the deceased. Moloka unsuccessfully
attempted to telephone
the police that night and only succeeded in
reporting the murder to them the next day. The two policemen,
Sergeants Motswana
and Morema, testified that they investigated the
murder. They met the appellant at his home and after some
discussion he undertook
to show them where the deceased’s body
and Great North’s vehicle were. He directed them to a place
about 160 km
(or 2 hours’ drive) away where he pointed out the
deceased’s body in a hole in the ground and the LDV
approximately
1 km away in the veldt. The appellant testified that
on 29 September 2004 he went home in a bus driven by Moloka. The
deceased
was waiting there for Moloka. The deceased and Moloka then
got into the LDV and drove off leaving the appellant at his home.
He knows nothing about the murder of the deceased. On 30 September
2004 Sergeants Motswana and Morema came to his house, arrested
him
and took him with them to a place where the deceased’s body
was found in a hole in the ground and the LDV was found
in the
veldt. He did not direct the police to the body and the vehicle.
It was not necessary as the police knew where to go.
The appellant
could not explain why the state witnesses would testify as they did.
[5] It is trite
that a court must take into account all the evidence before
convicting or acquitting the accused – see
S
v Van der Meyden
1999
(1) SACR 447
(W)
at
450a;
S
v Van Aswegen
2001
(2) SACR 97
(SCA)
para
8.
‘
The proper
test is that an accused is bound to be convicted if the evidence
establishes his guilt beyond reasonable doubt, and the
logical
corollary is that he must be acquitted if it is reasonably possibly
true that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the
court has before
it. What must be borne in mind, however, is that the conclusion
which is reached (whether it be to convict or
to acquit) must account
for all the evidence. Some of the evidence might be found to be
false; some of it might be found to be
unreliable; and some of it
might be found to be only possibly false or unreliable; but none of
it may simply be ignored’.
See
S
v Van der Meyden supra
at
450;
S
v Van Aswegen supra
at
101c-e.
[6] The court
a
quo
found
that there was an overwhelming case against the appellant and
rejected his evidence. The court did not find it necessary
to
analyse the evidence of all the witnesses. It clearly relied on the
evidence of Moloka who testified that he saw the appellant
shoot the
deceased in the head and the evidence of the two policemen that the
appellant directed them to the places where the
deceased’s
body and the LDV were found. In the circumstances, such a
pointing-out justified a finding that the appellant
had murdered the
deceased and attempted to destroy the evidence. Only the murderer
could know where the deceased’s body
and the LDV were.
[7] Although the
point was not raised by the appellant’s counsel I have some
difficulty with the court
a
quo
’s
reliance on the pointing-out. While the undisputed evidence of
Sergeant Motswana was that he warned the appellant of
his right to
remain silent and the consequences should he say anything, there is
no evidence that the policeman warned the appellant
of his right to
refuse to point anything out and the consequences should he do so
and that he had a right to consult a legal
practitioner before
undertaking a pointing-out. Making a statement and pointing
something out are clearly two different acts
and a pointing-out may,
in effect (as in this case) amount to an extrajudicial admission –
see
S
v Sheehama
[1991] ZASCA 45
;
1991
(2) SA 860
(A)
at
879H-I. It has been held that a pointing-out in breach of the
accused’s constitutional rights is inadmissible subject
to the
discretion of the trial judge to allow the evidence if its exclusion
would bring the administration of justice into disrepute
– see
S
v Melani en Andere
1995
(2) SACR 141
(E)
at
152h-153g;
S
v Melani and Others
1996
(1) SACR 335
(E)
at
339b- 351g. Since the matter was not fully argued before this court
I am reluctant to make any final findings on the issue.
I shall
proceed on the basis that the evidence of the pointing-out of the
deceased’s body and the motor vehicle by the
appellant is
inadmissible and decide whether the remaining evidence justifies the
conviction, as was argued by the respondent’s
counsel.
[8] The appellant’s
counsel contended, for a number of reasons, that the evidence of
Moloka, who was a single witness, was
not satisfactory and did not
justify the conviction. The argument seemed to depend on the court
adopting a compartmentalised
approach to the evidence which, as I
have already pointed out, is not correct. While Moloka is a single
witness regarding the
actual shooting it is not a requirement that
his evidence be clear and satisfactory in every material respect.
In
S
v Sauls and Others
1981
(3) SA 172
(A)
at
180E-F the court emphasised that in considering the evidence of a
single witness for purposes of section 208 of Act 51 of 1977
there
is no rule of thumb test or formula to apply when deciding the
credibility of the single witness. The trial judge must
weigh the
evidence, consider its merits and demerits and, having done so,
decide whether it is trustworthy and whether, despite
the fact that
there are shortcomings or defects and contradictions in the
testimony, he is satisfied that the truth has been
told. The court
also pointed out (at 181G-H) that the exercise of caution should not
be allowed to displace the exercise of common
sense.
[9] Moloka’s
evidence was straightforward and he did not contradict himself in
any material respect. He was also not challenged
on the issues
raised in the appellant’s heads of argument. He was simply not
questioned on these issues. While it is
true that on the face of
it, it is improbable that the appellant would cold-bloodedly murder
the deceased in the manner described
without there being a heated
argument or harsh words exchanged Moloka’s version is
corroborated by the following evidence:
(1) The deceased
died from a gunshot wound in the neck. This is consistent with
Moloka’s evidence that the appellant shot
the deceased in the
head;
(2) Moloka’s unchallenged
evidence that before he shot the deceased the appellant said to the
deceased (I translate) ‘He
did not know what was going to
happen to the deceased’s children when he had finished what he
was going to do’;
(3) Sergeant Motswana’s
unchallenged evidence, elicited by the accused’s counsel in
cross-examination, that –
(i) the appellant said that he had
killed a person and wants to go and point out the scene;
(ii) Sergeants
Motswana and Morema asked the mortuary to go to the scene because the
appellant ‘had already said he has killed
that person’;
which, in context, clearly referred to
the deceased;
(4) Sergeant
Motswana’s unchallenged evidence that at the scene
where
the deceased’s body was found the appellant referred to a
container (shown in photograph 10 of exhibit C) as the
container
which he had used to carry the petrol; and
(5) The appellant’s
patently untruthful evidence which was correctly
rejected
by the court
a
quo
.
It is clear that the appellant testified to a version that was not
put to the state witnesses and was clearly adapted as the
case
progressed.
[10] in my view the
appellant was properly convicted and the appeal must be dismissed.
_______________________
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT
I agree
________________________
M.F. LEGODI
JUDGE OF THE HIGH COURT
I agree
________________________
M. ISMAIL
ACTING
JUDGE OF THE HIGH COURT
CASE NO:
A1117/2007
HEARD
ON: 18 March 2009
FOR
THE APPELLANT: MR. J. VAN ROOYEN
INSTRUCTED
BY: Legal Aid Board
FOR
THE RESPONDENT: ADV. F.W. VAN DER MERWE
INSTRUCTED
BY: Director of Public Prosecutions
DATE
OF JUDGMENT: 23 March 2009