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[2008] ZAWCHC 154
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Skate v S (A482/2007) [2008] ZAWCHC 154 (7 March 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
A482/2007
DATE: 7
MARCH 2008
In
the matter between:
HAPPY
BONGANI SKATE
Appellant
and
THE
STATE
Respondent
JUDGMENT
OOSTHUIZEN,
AJ
:
[1]
This is an appeal against the conviction and sentence of the
appellant, the details of which will be given presently. Before
dealing with the merits of the appeal it is perhaps necessary to
mention two ancillary matters.
[2]
The heads of argument on behalf of the appellant were initially drawn
by Mr
Pitlele
in October 2007, he having at that stage been instructed to argue the
appeal on behalf of the appellant. Mr
Pitlele
commenced pupilage at the local Bar in January 2008. In terms of the
Rules of the Bar which he joined he was thus precluded from
appearing
in appeals, or indeed in any other matters, without the requisite
permission of the Bar Council. Although he was aware
of that fact,
Mr
Pitlele
delayed the handing over of this particular matter until Wednesday 5
March, 2008, when he entrusted the arguing of this appeal
to Mr
Ramovha
who appeared before us this morning.
[3]
That delaying in the handover of the matter until virtually the eve
of the hearing of the appeal is most unsatisfactory. The
record
before us runs to almost 280 pages and it would have placed counsel
taking the appeal over in an untenable position to have
to go through
that record, consider the heads of argument, consider the applicable
legal principles and argue the matter properly
on extremely short
notice.
[4]
In the circumstances in which the appellant's erstwhile counsel found
himself, namely having commenced pupilage and therefore
being unable
to deal with the matter, he was duty bound to make timeous
arrangements to entrust the appeal to another counsel so
that his
client would not be prejudiced. This was not done in the instant
matter. Fortunately, Mr
Ramovha
did, notwithstanding the burden placed on him, have the opportunity
of going through the record and was able to argue the matter
adequately this morning. The appellant was also contacted in the
course of last week, told what the situation was and consented
to Mr
Ramovha
appearing
on his behalf so that uEtimately the particular aspect presents no
practical difficulties. However, the unacceptabifity
of Mr
Pitlele's
conduct in the circumstances needs to be emphasized.
[5]
Secondly, part of the record appeared to have been omitted in that
there was no indication in the typed transcript that one
of the
witnesses, a Mr Matuma, had completed his evidence. We were, however,
taken through the record and given the assurance by
counsel that all
the sequence numbers of the recording tapes reflected that there were
no omissions from the record. This much
was agreed by both counsel
for the appellant and for the respondent. The matter was argued, in
our view correctly, on the basis
that the transcript before us does
indeed accurately represent all the evidence that was led in the
court below.
[6]
Turning to the merits of the appeal. On 27 April 2002, Mr Maboyana
(hereinafter referred to as "the deceased") was
shot In the
head with a firearm. He sustained two gunshot wounds as a result of
which he subsequently died. The appellant was
charged with his
murder and certain statutory offences relating to possession of a
firearm and ammunition. He was found guilty
and sentenced to 15
years' imprisonment in respect of the murder and seven years in
respect of the statutory offences, the sentences
to run concurrently.
[7]
The shooting in question took place at a shebeen known as Geraldine's
Place in Phumlani Village. It was common cause between
all those
present at the time of the incident that the perpetrator walked up to
the deceased and, without prior provocation or
altercation, fired the
two fatal shots, an action suggestive of a gangland style execution.
All the relevant witnesses agreed that
the deceased and the appellant
were earlier and prior to the shooting both inside the shebeen, as
were approximately 30 to 50 other
people. At a stage the deceased
left and went to an adjoining property to relieve himself. On
returning he was approached by the
perpetrator and shot, as already
described.
[8]
The central dispute in the appeal is this. The State's witnesses
identify the appellant as the perpetrator of the shooting.
The
appellant testified that, at the time that the shots were fired, he
had remained inside the shebeen and that he was still there
when he
heard the shots and went out thereafter. At that stage the deceased
had already been wounded and had fallen to the ground.
The appellant
was corroborated in that evidence by four other witnesses.
[9]
Two witnesses were called by the State. It is sufficient to briefly
summarise their evidence. The first witness, one Blom, described
how
the deceased, on returning from the adjoining yard having relieved
himself, was approached by the appellant. The appellant,
without
saying anything, then shot the deceased, The shots were fired from a
.38 calibre revolver which the appellant took from
the front of his
trousers and after shooting returned the revolver to the same place.
At the time of the shooting, Blom was standing
outside the house with
one Andile Mene. Following the shooting many of the people that were
in the shebeen came from outside to
observe and find out what had
happened Blom and Mene were cousins and were both friends of the
deceased.
[10]
Andile Mene confirmed that he had been standing outside the shebeen,
and that at some stage the deceased went away to relieve
himself.
Shortly thereafter Mene heard his name being shouted. He turned
around and saw the deceased already fatally wounded,
falling to the
ground. There was a juke box playing loud music at the time which may
account for the fact that Mene was unable
to say anything, in his
evidence, about the firing of the shots. Mene then saw Blom shouting
at the appellant, asking why the appellant
had shot the deceased, to
which the appellant did not reply. Menes evidence was that the
appellant was, at the time of the shooting,
the only person near the
deceased, and that the appellant had a white cloth wrapped around his
hand.
[11]
Mene conceded that the relationship between himself and Blom on the
one hand, and the appellant on the other, was not on a
good footing,
arising from the fact that the appellant had been romantically
involved with Mene's sister. Mene and his family did
not approve of
this, as the romantic involvement had had certain adverse
consequences for the sister's high school education. It
was common
cause between the witnesses that, shortly after the shooting, the
police arrived at the scene and that the appellant
was still present
when they arrived there.
[12]
The appellant testified and, as already stated, called four
witnesses. The effect of their evidence is that the appellant
was
seated at a table inside Geraldine's Place with three or perhaps four
other persons. While seated there appellant and his witnesses
heard
the two shots fired. They went outside and saw that the deceased had
fallen to the ground. The appellant testified that he
neither saw the
person who fired the shots, nor knew at the time who it was. He
confirmed the evidence regarding the romantic relationship
which he
had with Mene's sister. He testified that he does not own, and has
never owned, a firearm and does not know how to use
one. This
evidence was unchallenged in cross-examination.
[13]
The law is clear that the
onus
is
on the State to prove that there is no reasonable possibility that
the defence which is put up is true. This has to be decided,
not in a
piecemeal fashion, separately considering the evidence on behalf of
the State and the defence, but viewing the evidence
as a whole. The
conclusion which is reached as to the guilt or innocence of the
accused has to take into account all the admissible
evidence before
the Court (see
S
v Van Asweqen
2001(2) SACR 97 (SCA) at 100f-101f;
S
v Van der Meyden
1999(1) SACR 447 (W) at 449g-i).
[14]
It is difficult to follow from the judgment delivered in the court
below on what basis the magistrate found that the evidence
put up by
the defence could not reasonably possibly be true. The magistrate
commented that the two State witnesses had given their
evidence
impressively but that, of course, in itself is not a sufficient
ground for finding that the defence cannot reasonably
possibly be
true. In the judgment the magistrate makes the comment that the
appellant's version was 'riddled with inconsistencies
and
improbabilities" but her judgment does not elaborate on what
those inconsistencies and improbabilities were in any particularly
helpful manner. She finds that the appellant's version is "totally
different from the State's version" but that would
of course, in
view of the defence put up, of necessity be so.
[15]
The key factor to the determination of the appeal is that the
appellant testified quite adamantly that he was inside the shebeen
when the shots were fired, that he had not fired the shots, that he
did not own and did not know how to use a firearm. These aspects
were
scarcely challenged in cross-examination. There is no reason, on my
reading of the record, to reject this evidence, particularly
given
the absence of cross-examination. It is well established [aw that it
is the duty of a cross-examiner to put to the person
testifying not
only facts, but also imputations, on the strength of which it will be
contended that the evidence given by them
fails to be rejected. That
was not done in the case of the appellant. A perusal of the record
will show that his evidence, particularly
on the important aspects
that I have just mentioned, remained virtually unchallenged.
[16]
St is so that there are certain unsatisfactory aspects in the
evidence of the corroboratory witnesses that the appellant called.
There is, for example, the fact that two of them stated that they
knew who the perpetrator was. If that was so one would have expected
others present at the time to have seen the assailant and be able to
identify him to the police when they arrived at the shebeen.
Surprisingly no sort identification occurred. It is also true that
there were various contradictions between these witnesses as
to how
much time elapsed between the shots being fired and the crowd exiting
the shebeen. There were various contradictions between
the order in
which persons existed from the shebeen and various other aspects, but
these are aspects of lesser importance given
the confusion which
would undoubtedly have reigned after everyone inside the shebeen had
heard the shots ringing out.
[17]
Even if one properly considers all of the contradictions or apparent
contradictions in the evidence of the
corroboratory
witnesses, it has been often held that the fact that an accused
person gives false evidence is not necessarily an
Indication that
they are guilty of the offence (see for example
S
v Jonathan
1987(1) SA 633 (A) at 648H-648C). The same must undoubtedly apply
where it is found that corroboratory witnesses called by the
defence
have given evidence which is not truthful.
[18]
On the other hand, there are, to my mind, a number of factors which,
properly considered, do not assist the State. There is,
for example,
the fact that there was bad blood between Blom, Mene and the
appellant arising out of the romantic relationship to
which I have
already referred to. This might constitute a reason for these
witnesses to have fabricated evidence against the appellant.
Then
there is the fact that there is nothing in the evidence which would
account for the appellant in cold blood and unexpectedly
walking up
to the deceased and shooting him through the head in the manner
described by Blom. I have already mentioned that what
happened is
suggestive of a gangland style execution, but there was no evidence
that the appellant was at the time involved in
any gang activities.
There was no evidence that he had any difficulties or arguments or
altercations with the deceased on the evening
in question or at any
prior time. There was no evidence that the appellant was intoxicated,
angry or in any other mood which would
account for a murderous
assault of the kind which occurred.
[19]
There is the further aspect that 10 days elapsed between the incident
and the appellant's arrest. According to the evidence,
in particular
that of Mene, he knew that it was the appellant that had perpetrated
the deed and would have been in a position to
convey that fact, to
the police when they arrived at the scene, or at latest when Mene
went to the police station shortly thereafter
to report what had
happened. It is thus inexplicably strange that ten days would have
elapsed between the offence and the arrest
of the appellant.
[20]
Having regard to these factors and a number of others and, in
particular, to the overall important factor that the
onus
rests
on the State and that the State, in my view, has not shown that the
evidence put up by the appellant cannot reasonably possibly
be true,
I am of the view that the appellant was incorrectly convicted. I am
of the view that the State did not discharge the
onus
resting
on it. That being so, the proper finding in the court below should
have been the acquittal of the appellant.
[21]
I would accordingly uphold the appeal and set aside the conviction
and the sentence.
OOSTHUIZEN, A J
MOOSA,
J
:
I agree. The appeal succeeds, the convictions and sentence are set
aside. Appellant is found not guilty and acquitted on all the
charges.
MOOSA,
J