Maqheane and Others v S (A232/2008) [2009] ZAFSHC 58 (14 May 2009)

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[2009] ZAFSHC 58
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Maqheane and Others v S (A232/2008) [2009] ZAFSHC 58 (14 May 2009)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: A232/2008
In the appeal between:
ALBERT B N T
MAQHEANE
First Appellant
KHOLISILE J A
NTHETHU
Second Appellant
SIBONGILE J
MAQHEANE
Third Appellant
MODUPE MOTAUNG
Fourth Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
EBRAHIM, J
et
VAN DER
MERWE, J
et
NXUSANI,
AJ
_____________________________________________________
HEARD ON:
11 MAY 2009
JUDGEMENT:
VAN DER MERWE, J
_____________________________________________________
DELIVERED ON:
14 MAY 2009
_____________________________________________________
[1] After 7am on the
morning of 17 November 2005, Mr Robert Peter Robertson (the
deceased), was brutally murdered, robbed of a
Volkswagen bakkie,
electronic ware, tools and, machinery and personal items to the value
of approximately R95 000,00, in what was
clearly a planned operation.
[2] The four appellants
as accused number one, two, three and five respectively, were charged
together with one Phallang Mosole,
as accused number four, in this
court with firstly robbery with aggravating circumstances and
secondly murder of the deceased.
At the end of the trial Voges AJ
convicted the four appellants as charged but found accused number
four not guilty. The appellants
were each sentenced to 15 years
imprisonment for the robbery and to life imprisonment for the murder.
With the leave of the trial
court the first appellant now appeals
only against the sentences whereas the second, third and fourth
appellants appeal against
both the convictions and sentences. For
the sake of convenience the appellants will hereinafter be referred
to as in the court
a quo
.
[3] The aforesaid murder
and robbery was not disputed and properly proved. It is therefore
only necessary in respect of the convictions
of accused number two,
three and five to refer to evidence presented by the prosecution that
could implicate these accused persons
in these crimes. The goods
found in possession of the accused or handled by them, referred to
below, were proved to be the property
of the deceased taken from his
possession on 17 November 2005.
[4] Tello Maqheane
(“Tello”), 18 year old son of accused number three, testified
that at approximately 11am on 17 November 2005
accused number one and
two arrived at the house of accused number three with the Volkswagen
bakkie of the deceased. Accused number
two was the driver of the
bakkie. Accused number one is Tello’s uncle, the brother of
accused number three. Loaded onto the
bakkie were the items taken
from the deceased. Accused number one enquired as to the whereabouts
of accused number three but accused
number three then arrived by
bicycle. All four of them then moved to the premises where
Nthabiseng Maria Letsie (“Nthabiseng”)
rented a room. There the
goods were offloaded from the bakkie and placed into Nthabiseng’s
room. Accused number three however
stood next to the gate of these
premises. Later that day Tello saw the bakkie again at the house of
his brother Theboho. At that
time the bakkie was without the rails
and number plates that it had when he saw it earlier that day.
[5] Nthabiseng testified
that on 17 November 2005 at approximately midday she went home with
her sister Matsipang Maria Maqheane
(“Matsipang”). Matsipang is
the wife of accused number three. On arrival at the premises where
she stays, they met accused
number three at the gate and the bakkie
of the deceased driven by accused number two and in which accused
number one was a passenger
leaving the premises. Inside her room she
found the goods belonging to the deceased. As she was told that
these goods belonged
to accused number one, she went to the house of
accused number three to enquire. There accused number three advised
her to wait
as the owner of the items would probably come to fetch
the items. She was not satisfied with the goods in her room as she
suspected
them of being stolen property. She went to phone the
police but the police did not arrive. Back at her room with
Matsipang, accused
numbers one and two arrived. Accused number one
removed a grey leather jacket and a black laptop bag. Accused number
two removed
a black leather jacket and a firearm. She noticed blood
on the shoes of accused number one. As neither accused number one
nor
the police arrived, Nthabiseng, still dissatisfied, returned to
accused number three to complain about the goods in her house.
As a
result hereof accused number three and four removed the goods
belonging to the deceased from the room of Nthabiseng with a
wheel
barrow. All this took place on the same date, that is 17 November
2005. Matsipang also testified and materially corroborated
the
evidence of Ntabiseng.
[6] Dikeledi Thebogoane
is the girlfriend of Theboho, another son of accused number three.
She testified that at approximately
11am on 17 November 2005 she saw
the bakkie of the deceased at a service station in the area. She saw
that the passenger in the
bakkie was accused number one but she could
not recognise the driver thereof. Between 3 and 4pm she arrived at
Theboho’s house
where she found the bakkie of the deceased at the
back of house, at this stage however without the number plates and
rails that
she saw that morning. She found this suspicious, also
because nobody on the premises was able to drive a vehicle. She went
to
the house of accused number three to enquire. She found nobody
there and then went to the room of Nthabiseng where she found
Nthabiseng,
Matsipang and accused number three. Accused number three
was busy bending number plates and took them with him when he left.
As a result of Dikeledi’s efforts, the police took possession of
the bakkie at Theboho’s premises on the evening of 17 November

2005.
[7] Three gentleman of
Zimbabwean origin, namely Stanley Morotsa, Moses Mdumburu and
Jabulani Nqube, each testified that at the
end of November/beginning
of December 2005 they bought property belonging to the deceased from
accused number three and handed
the purchase price for these items to
accused number three.
[8] Inspector C J
Claassen of the South African Police Services, the investigating
officer in the case, testified that since 17
November 2005, as a
result of information received, he was looking for accused number
three. He was however unable to locate or
make contact with accused
number three despite visits made and messages left at both the house
and workplace of accused number
three. Eventually, at about 23h00
on 13 December 2005, after climbing over a high fence and searching
the house, he found accused
number three hiding between the base and
mattress of his bed in his bedroom. Upon enquiry as to the goods
removed by accused number
three from the room of Nthabiseng, accused
number three took inspector Claassen to the house of accused number
four. Accused number
four informed him however that the goods were
taken to the house of accused number five. Accused number four then
took inspector
Claassen to the house of accused number five.
According to inspector Claassen accused number five admitted that
that was his house
and that he alone resided there. In the house
inspector Claassen found several items belonging to the deceased.
Except for a
television set, these goods were placed in a sink bath
and covered with a blanket. According to this witness accused number
five
was unable to provide an explanation for the presence of the
belongings of the deceased in his house. He denied that accused
number
five said that that was the house of a person referred to in
the record as Deboni and that he took care of Deboni’s house in the

latter’s temporary absence.
[9] Accused number one
testified in his defence. He testified that he was employed by the
deceased. He said that on the morning
of 17 November 2005, whilst he
was working with the deceased, accused number two, three and five, as
well as a person unknown to
him, arrived. Accused number five was
also unknown to him. Accused number two carried a firearm and
accused number three hit
the deceased with a tommy bar at the back of
the head or neck as a result of which the deceased fell down and was
further assaulted.
Accused number one described in detail how the
murder and the robbery were perpetrated. He assisted in removing the
property
of the deceased by loading it onto the deceased’s bakkie
but said that he did so as a result of having been threatened with a

firearm by accused number two. Accused number one testified that the
bakkie was then driven to the house of accused number three.
Accused
number two was the driver of the bakkie and accused number five was
on the passenger side, whilst accused number one sat
in the middle.
At accused number three’s house they met Tello. On the
instructions of accused number three, Tello got into
the bakkie with
accused number two, who then drove to Nthabiseng’s place. Accused
number one, three, five and the unknown person
apparently went on
foot to Nthabiseng’s place. There the goods were offloaded and
placed in Nthabiseng’s room. Accused number
three then removed the
number plates from the bakkie, at Nthabiseng’s place. Accused
number three sent Tello to call Theboho,
who then arrived. Accused
number three told Theboho that the bakkie would be left at Theboho’s
place. All of them then left
with the bakkie for Theboho’s place.
Accused number five, who then had the firearm in his possession, sat
in the back of the
bakkie. Accused number one was arrested that same
evening at approximately 8 or 9 pm.
[10] Accused number two
testified that he knew nothing at all about the incident. He was
arrested on 22 November 2005. He said
that he borrowed the black
leather jacket from Theboho approximately two days before his arrest.
[11] Accused number three
testified that he works for a crèche and resides in a house on
the same premises. On 17 November
2005 he was sent on an errand and
on his return with his bicycle, he saw accused number one and the
deceased’s bakkie with the
goods loaded onto the bakkie. Accused
number two was also present. Accused number one said that the bakkie
and the goods belonged
to his employer. He enquired whether he could
leave the goods at accused number three’s place. He said that they
were going
back to the farm but would pick up the goods on the
following day on their way to the place where they are going to work
outside
of the city. Accused number three then said that he did not
have room for the goods. Mention was then made of Nthabiseng. Tello

was in possession of a key to Nthabiseng’s room. The goods were
then taken to Nthabiseng’s place of residence and placed in
her
room by accused number one and two in the presence of accused number
three. Accused number one and two then drove off with
the bakkie.
Just at that moment Nthabiseng and Mapitsang arrived. Accused number
three then informed Nthabiseng about the goods
and that they would be
picked up on the following day by accused number one. Later that day
however Nthabiseng phoned accused
number three and told him that her
landlord was dissatisfied about the presence of the goods. As a
result accused number three
removed the goods with a wheelbarrow to
accused number four’s house. However on the same day he also
received a message from
accused number one that he should sell the
items that he did sell to the Zimbabweans. He handed the proceeds of
the sale of these
goods to the messenger.
[12] Inspector Claassen
was then called as a defence witness for accused number three. He
testified that in the statement made
by accused number one shortly
after his arrest, he did not implicate accused number three (he also
did not implicate accused number
five). Accused number four closed
his case without testifying.
[13] Accused number five
testified that he was arrested by inspector Claassen early on the
morning of 14 December 2005 at the house
of Deboni. Accused number
five testified that he stayed at the house of Deboni at the latter’s
request in order to look after
the place whilst Deboni was in
Lesotho, where they both hail from. He testified that he told this
to inspector Claassen. The
police then searched the house and found
items stolen from the deceased. These items were however not hidden
in any way. He testified
that he had no knowledge of the crimes in
question.
[14] The court
a
quo
accepted the evidence presented by the prosecution referred to above.
The court
a
quo
recognised the need to consider the evidence of accused number one
with caution and concluded, rightly so in my view, that the
evidence
of accused number one implicating his co-accused, can be accepted
where it was corroborated. The trial court rejected
the evidence of
accused number two, three and five.
[15] Save for the
position of accused number five, which will be dealt with below,
there is no basis for interfering with these
findings. The evidence
against accused number two is so overwhelming that his denial thereof
cannot be reasonably possibly true.
I agree with the trial court
that the evidence of accused number three is riddled with
improbabilities. I point only to the following.
It is common cause
that accused number three actively participated in the handling of
the stolen goods from the time that the
bakkie arrived at his house
during the morning of 17 November 2005. Accused number three
participated in the arrangements to take
the goods to Nthabiseng’s
residence, thereafter he himself moved the goods with a wheelbarrow
to accused number four and he sold
three of these items, consisting
of machinery. His evidence however was that he was told that these
goods belonged to the employer
of accused number one and would be
fetched by accused number one on the following day. On his evidence,
on the probabilities,
there was no need to move the goods from
accused number three’s place of work and residence to Nthabiseng’s
place of residence,
without her permission or knowledge and where
that residence consisted of only one rented room. Even more
improbable on the version
of accused number three is that thereafter
on the same day the machinery would be sold and the goods moved by a
wheelbarrow to
the place of residence of accused number four. Most
damning, however, is the evidence against accused number three by his
own
brother, accused number one, for which there is no explanation
other than that it is the truth. In the circumstances the fact that

accused number one did not initially implicate accused number three
pales into insignificance.
[16] The evidence against
accused number five consists of that of accused number one and of
inspector Claassen. As mentioned already,
the evidence of accused
number one implicating accused number five must be viewed with
caution. It will be remembered that in
his evidence accused number
one placed accused number five not only at the scene of the crime but
also at the house of accused
number three and the place of residence
of Nthabiseng in the presence or view of the aforesaid state
witnesses. None of these
witnesses however testified that accused
number five was either at the house of accused number three or at the
place of residence
of Nthabiseng. In my judgment this is cause for
grave concern and doubt in respect of the veracity of the evidence of
accused
number one against accused number five.
[17] That leaves the
evidence of Inspector Claassen that was disputed by accused number
five. The question is whether the court
a
quo
was
justified in rejecting the evidence of accused number five as false
beyond reasonable doubt. In its judgment the trial court
said only
the following in respect of the credibility of accused number five:
“
Beskuldigde 5 het ‘n power indruk
as getuie gemaak. Hy was ontwykend in sy beantwoording van vrae, het
sy instruksies aan sy
regsverteenwoordiger weerspreek ten opsigte van
die goed in die sinkbad en het homself weerspreek ten aansien van wie
se huis dit
was waarin hy en die gesteelde goed aangetref is. Sy
weergawe dat hy bloot die huis vir Deboni vir een of twee nagte sou
oppas
kom onwaarskynlik voor. Beskuldigde 1 sê dat beskuldigde
5 en Deboni by die pleging van die misdade betrokke was. Beskuldigde

5 getuig dat Deboni sy swaer is.”
[18] In my judgment none
of these aspects justify a conclusion that the evidence of accused
number five may not be reasonably possibly
true. It was quite
incorrect to conclude that accused number five contradicted
instructions given to his legal representative,
in view of the
following passage of the record:
“
U instruksies aan my was dat die
goed in ‘n sinkbad was met ‘n kombers daaroor. Hoe verduidelik u
dit? --- Nee, ek het nooit
so instruksies gegee aan u. Ek het nie
so gesê dat hulle was in die sinkbad nie. U het nie vir my
mooi verstaan nie. Die
goedere wat daar in die sinkbad gewees het,
dit was vuil klere van Deboni.
Edele, ek wil net nog op rekord plaas
dat ons wel gebruik gemaak het van ‘n tolk. So dit is moontlik dat
daar ‘n misverstand
kon ingesluip het, maar ek sal dit daar laat.”
The statement that
accused number five was an evasive witness, is in my judgment not
born out by a reading of the record. It is
true that in the
beginning of his evidence in chief accused number five said that the
police arrived at his house during the night
of 13 and 14 December
2005. It should however have been clear that this was simply a
mistake. The version of accused number five
that he was found at the
house of Deboni and why, was clearly put to inspector Claassen and
was put right in the very next sentence
of the evidence in chief of
accused number five. I do not find it at all improbable that accused
number five looked after the
house of Deboni in the manner that he
testified. Accused number one did not testify that Deboni was
involved in the commission
of these crimes and in any event, even if
the statement was correct, the mere fact that Deboni was the
brother-in-law of accused
number five, could not count against him at
all. In my judgment the trial court was clearly wrong in rejecting
the evidence of
accused number five. Counsel for the respondent
therefore correctly conceded that the evidence of accused number five
may reasonably
possibly be true and that he should have been
acquitted on both charges.
[19] Regarding the
sentences imposed in respect of accused numbers one, two and three,
the question is whether the court
a
quo
erred in finding that there were no substantial and compelling
circumstances that justified departue from the sentence of 15 years

imprisonment prescribed in respect of count 1 and life imprisonment
in respect of count 2. Counsel for accused numbers one, two
and
three each conceded that they could not put forward any such
substantial and compelling circumstances. These concessions were

made fairly and clearly correctly.
[20] The following order
is issued:
1. The appeals of the
first appellant, second appellant and third appellant are dismissed.
2. The appeal of the
fourth appellant (accused number five in the court
a
quo
)
succeeds and his convictions and sentences are set aside.
________________________
C.H.G. VAN DER MERWE,
J
I
concur.
_______________
S. EBRAHIM, J
I concur.
_______________
J. NXUSANI, AJ
On
behalf of the first appellant: Adv. K. Vorster
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the second
appellant: Adv.
N. L. Skibi
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the third
appellant: Adv.
R. J. Nkhahle
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the fourth
appellant: Adv.
J. S. Makhene
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. S. Chalale
Instructed
by:
The Director: Public
Prosecutions
BLOEMFONTEIN
/em