Modupi v S [2004] ZAFSHC 15 (11 March 2004)

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[2004] ZAFSHC 15
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Modupi v S [2004] ZAFSHC 15 (11 March 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal
No.: A210/2003
In
the appeal between:
SEIPHEMO
JACOB MODUPI
Appellant
and
THE
STATE
Respondent
___________________________________________________________
CORAM:
___________________________________________________________
HEARD
ON:
___________________________________________________________
JUDGMENT
BY:
MUSI, J
___________________________________________________________
DELIVERED
ON:
11 MARCH 2004
___________________________________________________________
[1] The appellant was convicted of murder in the
Regional Court at Petrusburg on 17 October 2001. He was sentenced to
15 years imprisonment.
He appeals against the conviction and
sentence.
[2] The court
a quo
made factual and credibility findings in favour of the sole
eye-witness for the State, Thomas Januarie (Januarie), in terms of
which
he accepted his version as true. It made adverse credibility
findings against the appellant and his two witnesses and rejected his
version as false. The court
a quo
thus convicted the appellant basically on the basis of the version of
a single witness. In doing so, the court
a
quo
rejected the two pillars on which the
appellant’s defence rested, namely that the deceased was armed with
screwdriver and, secondly,
that the appellant acted in self-defence
in stabbing the deceased with a knife and thus killing him.
[3] Now the court
a quo
was better placed to assess the credibility of the witnesses and it
is settled law that a Court of Appeal will not lightly interfere
with
such findings. However, a perusal of the record reveals that the
testimony of the sole eye-witness for the State was not satisfactory
in every material respect and, standing alone, it could not have been
sufficient to support a conviction. Ms Reinders, who appeared
for
the appellant, correctly pointed to the contradictory nature of his
evidence relating to the issue of whether the deceased had
a
screwdriver when he entered the appellant’s house immediately
before being stabbed by the appellant. Counsel also pointed to
a
contradiction between his statement to the police and evidence in
court in one particular respect. Now January denied that he
would
have told the police that he witnessed the stabbing from outside and
he ascribed the discrepancy to the fact that the statement
was not
read back to him. However, he was contradicted by the police officer
who took the statement, who insisted that what he wrote
was what was
conveyed to him by the witness and that he had read the statement
back to the witness. Now these are certainly demerits
in the State
case.
[4] A perusal of the record also reveals that though the
appellant does not appear to have been an impressive witness (he
appears
vague and had to be prodded to elaborate on aspects of his
version), there are not material contradictions or inherent
improbabilities
in his evidence. Nor was he discredited under
cross-examination. In my view the Magistrate was wrong in rejecting
his evidence
in toto
.
[5] The correct approach in determining whether the
State has discharged the onus of establishing the guilt of an accused
beyond a
reasonable doubt is to consider the totality of the evidence
on record. Neither the evidence of the State nor that of the defence
should be looked at in isolation. The court has to take into account
the merits and demerits in the evidence of the State and that
of the
defence as well as the probabilities in the matter. (See
S
v SINGH
1975 (1) SA 227
(N) at 228G;
S v MATTIODA
1973 (1) PH H.24 (N
)).
The test was succinctly expressed as follows by Nugent, J (as he
then was) in
S v VAN DER MEYDEN
1999 (1) SACR 447
(W) at 449j-450b
:
“
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
possible 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.”
[6] In my view, the evidence of Januarie as to what
happened immediately prior to the stabbing has a ring of truth and is
probable.
It finds support in aspects of the evidence of the
appellant and his wife. According to their version the appellant and
his wife
had a quarrel during which the wife went into the bedroom.
It is from there that she heard people shouting that the deceased had
been stabbed or killed. It all fits in with Januarie’s evidence
that the appellant had become aggressive, got hold of a knife
and
wanted to go for his wife who had hid herself in the bedroom. And
the question arises as to how would January have witnessed
all this
if he was not inside the house. And I am of the view that the
learned Magistrate was correct in rejecting the version of
the
appellant in this regard. January gave details of what happened
inside the house, whereas the appellant’s version is a bare
denial
that January was present. As for the appellant’s wife, she was
clearly a poor witness whose concern was to protect her
husband. She
gave a very bizarre account of her conduct that night. Her own
brother had been bludgeoned to death right at the doorstep
of her
house and yet when she goes out of the house she simply takes a
glancing look at him and goes away. Januarie’s evidence
in this
regard also puts in serious doubt the accuracy of that portion of his
extracurial(?) statement to the effect that he witnessed
the stabbing
from outside. If this was what he had said, I can see no reason why
he would want to exchange it for a version that
removes his view from
the actual stabbing. It is generally known that statements taken
from witnesses by the police do not always
accurately reflect what
was said and there are many reasons therefore. (Compare
S
v BRUINDERS EN ‘N ANDER
19998 (2)
SACR 432 (SE)
).
In
casu
it is not inconceivable that the
relevant passage reflects what was told by other people who had been
outside, like Johannes, and
was incorrectly incorporated into
Januarie’s statement. I can see no reason, moreover, why
Januarie’s version in the witness-box
should not be accepted.
[7] Januarie’s version that the appellant had been
very aggressive is borne out by the fact that as soon as the deceased
put his
foot at the door, the appellant immediately confronted him.
There is no suggestion that the deceased had uttered any word or done
anything to warrant such confrontation. The appellant only talked
vaguely about the deceased having been angry and aggressive as
he
came in. By the appellant’s own version he got hold of the
deceased’s hands and pushed him backwards as a result of which
the
deceased fell down the stairs outside. Clearly if there had been any
threat from the deceased it dissipated when he fell and
the appellant
could have avoided any further trouble by simply slamming the door
and keeping the deceased out. No, he does not do
that. On his own
version he pulls out a knife and goes for the deceased. To show that
the appellant was in an aggressive and fighting
mood he stabs the
deceased not only once but four times so that the deceased dies right
there on the spot.
[8] The version of the appellant that he was acting in
self-defence is not supported by the objective facts in the matter:
the nature
and number of the stab wounds inflicted on the deceased
(one was even on the back) whilst the appellant himself sustained not
even
a single scratch and the deceased died right there on the spot.
The appellant’s conduct after the stabbing is also not consistent
with that of someone who had been attacked. As soon as the deceased
drops dead he simply goes back into his house and sleeps as
if
nothing had happened, even after hearing people shouting that the
deceased was dead. Surely one would have expected him to have
gone
to report the incident at least to his employer. He could also have
made sure that he gets hold of the screwdriver if indeed
he had been
attacked with it. No, he does not even look for it. Even though he
has a right to silence and cannot be held against
him that he did not
give any explanation to the police, surely he could have mentioned
the screwdriver to them. His conduct is more
consistent with that of
someone who had achieved what he had wanted to.
[9] Most importantly there is no credible evidence that
the deceased posed any serious threat of harm that the appellant
would have
been compelled to avert in the manner that he did. He
only makes a ………….. statement that the deceased wanted to
stab him,
which has got no cogency whatsoever. Interestingly he was
able to grab he deceased and push him down the stairs causing him to
fall.
Even accepting that the deceased threatened him with a
screwdriver, he had other ways of averting the danger, for instance
by simply
closing the door and keeping the deceased outside after the
latter had fallen. I hold therefore that even if the deceased may
have
had a screwdriver with him, he did not threaten the appellant
therewith. Moreover it is more likely that the screwdriver would
have
been in the deceased’s pocket at the time, on Januarie’s
evidence.
[10] In my view the appellant was correctly convicted
and the appeal against conviction must fail.
On behalf of Appellant:
Adv.
C. Reinders
instructed by
Legal
Aid Board
On behalf of Respondent:
Adv.
S. Giorgi
Instructed by
Director:
Public Prosecutions
/scd