S v Khatli (CA&R68/07) [2007] ZANCHC 61 (16 November 2007)

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[2007] ZANCHC 61
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S v Khatli (CA&R68/07) [2007] ZANCHC 61 (16 November 2007)

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IN
THE HIGH COURT OF SOUTH-AFRICA
(NORTHERN
CAPE DIVISION)
KIMBERLEY
CASE
NO.: CA&R68/07
DATE
HEARD: 05-11-2007
DATE
DELIVERED16-11-2007
In
the Appeal of:
MOKGETSENG KHATLI APPELLANT
And
THE
STATE RESPONDENT
CORAM:
WILLIAMS J et NDUNA AJ
JUDGMENT
WILLIAMS
J:
1. The appellant was
convicted on 7 June 2005 in the Regional Court, Kimberley, on a
charge of murder and was sentenced to 15 years
imprisonment.
He now appeals against
both the conviction and the sentence imposed.
2. It is common cause
that on 20 October 2001, the deceased, one Lebolang Ramanyatsi was
shot in a tavern in Kimberley and later died
of the gunshot wound.
The only real issue in dispute at the trial was whether it was the
appellant who had shot the deceased. To
this end three eye witnesses
to the incident were called by the State.
3. Caswell Moleleki was
with the deceased in a tavern where they were hiding from a group of
men who were chasing them. At one point
Moleleki decided to leave
the tavern. His evidence was that as he opened the door to leave the
tavern he saw the appellant in front
of him at the door, holding a
firearm in one hand and a knobkierie in the other. He ducked
underneath the appellant’s arm and
ran away. Immediately
afterwards he heard a shot go off. Moleleki’s evidence is that the
appellant wore a green blanket over
the upper part of his body and
had a cap on his head.
4. Ronald Modise was
working at the tuck shop next to the tavern. At one point he went
into the tavern to get some change. As he
left the tavern he saw the
appellant at the door with a firearm in his hand. He asked the
appellant what he was up to, to which
the appellant replied that he
would stop. Just as he turned around to go back into the tuck shop
he heard a gunshot. The appellant
and his mates, who had been
standing some small distance away, then ran away. This witness knows
Caswell Moleleki, but states that
he did not see Moleleki at the
scene. His evidence was further that the appellant wore a white
t-shirt with black trousers and had
a black hat on his head.
According to this witness the appellant did not have a knobkierie.
5. Joseph Skinner was the
barman at the tavern. He saw the appellant entering the doorway of
the tavern and taking out a firearm.
Appellant then fired a shot at
the deceased who was sitting in the tavern whereafter he ran away.
According to this witness the
incident happened very quickly. He
could not describe the clothing of the appellant since his view of
the appellant was partially
obscured by the other patrons in the
tavern. He however did manage to see the appellant’s face and the
firearm. According to
Skinnner, the appellant had nothing on his
head and was in fact bald shaven.
6. The appellant also
testified. He raised an alibi defence, claiming that he was not in
Kimberley on the day of the shooting incident
but in Bloemfontein,
doing construction work.
7. The defence called Mr.
Tladi Thulo to confirm the alibi. Thulo resided in Bloemfontein and
his evidence was that on 20 October
2001, the day of the incident, he
had visited the appellant at his place of residence in Bloemfontein
where the two of them had passed
the time listening to cassettes.
8. The
trial magistrate in his judgment rejected the evidence of the
appellant and his witness. He found that the three state witnesses
“have
corroborated one another despite lengthy cross-examination by the
defence. Contradiction on the dress worn and the weapons
carried by
the accused are neither material nor can they be described (sic) to
proper dishonesty and untruthfulness.”
9. However unlikely the
appellant’s version may have been, I fail to understand how the
trial magistrate could have come to this
finding on the reliability
of the state witnesses. The three state witnesses have each given a
different description of the perpetrator.
Moleki and Modise seem to
have witnessed two completely different incidents. If one, by any
stretch of the imagination, accepts
the evidence of these two
witnesses, then they would both have encountered the appellant at the
same time at the door of the tavern
on their way out. Yet neither
saw the other and despite both of them claiming to have seen the
appellant close up, they give completely
different descriptions of
the clothes worn by the appellant and the weapons he carried.
Skinner, on his own
version did not have much opportunity to observe the perpetrator due
to the mobility of the scene and the fact
that the incident played
itself out over a very short space of time. His observation,
partially and briefly as it was, in no way
corresponds with that of
the other state witnesses.
10. Mr. Tshweu, who
appeared for the State, conceded that the conviction cannot stand and
I could not agree more. The state has failed
to prove that the
appellant was the perpetrator of this heinous crime and the
conviction and sentence should therefore be set aside.
In
the premises the following order is made;
a) The
appeal is upheld
b) The
conviction and sentence are set aside.
________________________
C
C WILLIAMS
JUDGE
I
Concur
_______________________
N
NDUNA
ACTING
JUDGE
For
Appellant: Adv B Segone
For
Respondent: Adv Adv P M Tshweu