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[2024] ZAECMKHC 46
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Human v S (CA&R 221/2023) [2024] ZAECMKHC 46 (7 May 2024)

IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE NO. CA&R
221/2023
In
the matter between:
CLEMENT
HUMAN

APPELLANT
and
THE
STATE

RESPONDENT
JUDGMENT
Rugunanan
J
[1]
The
appeal before this Court is automatically prompted by section
309(1)
(a)
of the Criminal Procedure Act
[1]
following a conviction for murder and a sentence of life imprisonment
imposed on the appellant by the Regional Court, Gqeberha
on 21
September 2018.
[2]
The
offence was committed on 31 August 2014 in Bardien Avenue, Bloemendal
when the deceased RG
[2]
was
stabbed with a knife in the yard of his place of residence.
[3]
The decisive issue for determination in
this appeal is whether the appellant stabbed the deceased.
[4]
In prosecuting its case the State relied on
CCTV video surveillance footage and the testimony of seven witnesses
namely: Enver Jasson,
Clement Johnson (Johnson), Reveno Latola
(Latola), Dr Keith Kalev, Ms Melanie Barnard, Deondre Davies
(Davies), and Ms Davidene
Jasson (Ms Jasson).
[5]
The
judgment on conviction evinces a holistic evaluation of the
evidential mosaic
[3]
but
indicates that the magistrate drew inferences implicating the
appellant without properly evaluating the evidence given by the

witnesses Johnson and Latola. In that regard, he erred.
[6]
Considering
that the remaining witnesses did not observe the appellant stabbing
the deceased and testified only about his presence
at the scene,
their evidence for that reason will not be repeated in this judgment
except for recapping the remaining evidence
which is necessary for
the specific issue on appeal to be considered.
[4]
In employing that approach we are enjoined to keep in mind the
abiding principle that the totality of the evidence is in the
ultimate
analysis essential for determining whether the guilt of the
appellant has been proven beyond reasonable doubt, though it is not

impermissible to break down the evidence into its component parts in
arriving at a conclusion.
[5]
[7]
On the day in question the appellant
together with two other individuals one being Thandekile Attwell
Maxengana (the appellant’s
father) and the other, a sibling
named Boetie, were in the front yard of the deceased’s
premises. Coinciding with their presence
was the deceased who was
stabbed with a large knife having a blade length of approximately 20
centimetres. The medical evidence
indicated that the deceased
sustained bruises and five incised wounds among them, a large gaping
incised wound from he succumbed
measuring 12 centimetres on the left
side of his neck. This brief overview is largely common cause and led
to the prosecution of
Mr Maxengana and the appellant respectively as
accused 1 and 2 on a charge of planned or premeditated murder. The
appellant’s
sibling Boetie, had passed on by the time the
criminal proceedings were instituted.
[8]
The appellant does not dispute being at the
scene. His version at the outset is that he did not stab the deceased
– he disarmed
the knife from Boetie after Boetie stabbed the
deceased. This version must be tested against the reliability of the
evidence of
Johnson and Latola as well as the CCTV footage. The
footage captures events in real time in the period indicated by time
stamps
19:35 to 19:36. The calibration or accuracy of this timeline
was not disputed, and it is accepted that the events occasioning the

stabbing occurred during 19h35 and 19h36.
[9]
Given the time of day when the incident
happened the evidence of visibility conditions and proximity of
witnesses is vital to determining
whether the appellant’s
version is reasonably possibly true. For reasons to follow the
evidence on these aspects is unsatisfactory
and the surveillance
footage, which does not capture the actual stabbing of the deceased,
does not assist either. It will be shown
in this judgment that the
footage is unhelpful and similarly are the observations by Johnson
and Latola as to whether they indeed
saw the appellant wield a knife
and stab the deceased.
[10]
The
surveillance footage was introduced by Ms Jasson. She is an employee
at a store which is located next to the deceased’s
residence in
Bardien Avenue. She downloaded the footage onto a flashstick. The
device was handed over to the investigating officer
for safekeeping.
It was held in
S
v Ramgobin and Others
[6]
that for video tape recordings to be admissible as evidence, it must
be proved that the exhibits are original recordings and that
there
exists no reasonable possibility of interference with the recordings.
There was no cross-examination disputing the authenticity
of the
footage, or that there was interference with its recording quality
and timing. In the absence of any dispute about the authenticity
of
the recording, it was admitted into evidence.
[11]
The CCTV camera from which the surveillance
footage was recorded is mounted on the roof of the store and faces
somewhat obliquely
the direction of the street. It does not give
coverage of the yard in which the incident occurred nor of the
entrance to the yard.
For that reason there is no depiction of how
the actual stabbing occurred or by whom it was executed. The evidence
scantily indicates
that there was light or perhaps a light source
somewhere in the street. There is no indication that the light
illuminates the yard,
except only (as a matter of inference) that
light falls within the range of the CCTV camera.
[12]
In that range and within the recorded
timeline it is not disputed that the surveillance footage depicts the
co-accused Thandekile
Maxengana and Boetie moving towards the
direction of the deceased’s residence followed a few moments
later by the appellant
who was running while holding onto something
unidentifiable near the right side of his waist.
[13]
It is also not in dispute that the
appellant, while holding a knife in his right hand and followed by
his co-accused and Boetie,
emerged a few moments later into the range
of the CCTV camera as if exiting the yard; the camera at some point
capturing Davies
throwing stone(s) at the appellant and the others
(Davies’s denial is however inconsequential to the reasoning
employed in
this appeal save that he testified that it was dark when
he saw the appellant and the others).
[14]
In his judgment the learned magistrate made
the finding that Boetie and the co-accused were, as a matter of
probability, unarmed
when they approached the deceased’s
premises. This finding is not supported by the evidence of Johnson
and Latola. Neither
of them were specifically asked if Boetie or the
other co-accused was unarmed with a knife, nor can this be inferred
from the CCTV
footage.
[15]
Johnson
was a street observer on his way to purchase beer. His faculties were
not tasked as to his proximity from the scene, his
state of sobriety,
his age, his eyesight, or his opportunity for observation both as to
time and situation.
[7]
It is no
exaggeration that the transient time frame in the surveillance
footage is indicative of a fast moving scene. It was therefore

incumbent for the prosecution to have explored these aspects for
establishing the reliability of Johnson’s evidence.
[16]
That was not done.
[17]
An overall reading of Johnson’s
evidence indicates that he was not an impressive witness.
[18]
His testimony is punctuated with hesitancy
and his responses required prompting. He gave contradictory evidence
on a number of material
aspects as is evident from the following
excerpts in the transcript:
‘
Wat
sien u nog? --- En dis daar wat ek sien wat, wat
number
two
die mes uit nou haal and daardie
tyd wat hulle hom so by die kappie het dan steek hy.
Ja. Wat sien u nog? ---
En is daar wat hy mos nou geskree het los my, los my dan. Los hulle
hom nie dan steek hy, het gesien hy
het twee kere …
Tweekeer gesteek? ---
Hmm.’
…
‘
Die
stekery. Is dit nadat hulle hom uit die huis uitgetrek het? --- Nee
toe hulle hom uittrek, ek weet nie het hulle hom in die
huis al klaar
gesteek nie maar ek het gesien wat hulle hom uitgetrek het, het hulle
hom tweekeer gesteek.’
…
‘…
u
stap nader aan die hek. Is dit reg? --- Ja meneer.’
…
‘
U
staan en kyk en dan stap u skielik agtertoe. Wat het gebeur? --- Is
daardie tyd wat hulle steek mos nou.’
[19]
Johnson’s response in the above
excerpts suggests that the appellant and the two others stabbed the
deceased twice. This response
is puzzling. His entire narrative
suggests that the stabbing was executed by the appellant and the
others and that it occurred
at the same time. This could only have
been possible if any one of the other two who accompanied the
appellant was also armed with
a knife. It is also noteworthy that
Johnson’s account of events is inconsistent with the medical
evidence regarding the number
of wounds sustained by the deceased.
There is no evidence nor any account by any other independent
witnesses that could possibly
explain how the deceased’s
remaining wounds were inflicted. One is therefore left with the
appellant’s version indicating
that upon his arrival at the
scene, Boetie had already stabbed the deceased.
[20]
Elsewhere, and in response to a leading
question, the transcript reads:
‘
En
nommer twee hom steek met hierdie mes. Is dit so? --- Ja.’
[21]
This is completely at odds with Johnson’s
narrative and required him to speculate in proffering an affirmative
response to
a deceptive question.
[22]
Significantly, the exchange in
cross-examination exposed the following anomalies:
‘
Sien
u of hy hom fisies raaksteek of sien u net hy steek na hom? --- Ek
het gesien hy steek na hom, ja.
Goed. Maar net u kon nie
sien of hy raakgesteek word en waar nie? --- Uh-uh.’
[23]
After a repeated pattern of responses with
a similar exclamation Johnson is asked by the magistrate to clarify
but proffers no response.
‘
Uh-uh,
beteken uh-uh nou nee of ja of wat? --- Kan u nie weer verduidelik
nie?
[24]
On being questioned about visibility
conditions, the transcript is revealing:
‘
Stem
u saam dis ‘n donker erf daardie? --- Die huis se lig skyn
daar.
Watse tipe lig is dit?
--- Dis die voorhuis , die lig van die huis, die voorhuis lig skyn
buitekant toe …
Die gewone gloeilamp
liggies? --- Huh?
Daardie
bulbs
? Ja.
Is dit die enigste lig
daar, net die bulb wat in die huis self brand? --- Wat gebrand het,
ja. En die kitchen lig mos nou.
So u stem saam met my dit
is maar ‘n baie flou liggie daardie in so ‘n groot
gedeelte to verlig wat uit die huis uit
skyn? --- Ja.
Nou u stem saam dit is
relatief donker dan in daardie erf as dit die enigste beligting is?
--- Dit was donker daar, ja …
Die beligting is dof, dis
nie ‘n helder lig nie. U stem saam met dit? --- Oukei ek stem
saam.’
[25]
Having conceded that the scene in the yard
was dark Johnson moreover stated, without indicating how far, that he
stood quite a distance
away.
[26]
In summing up her cross examination the
appellant’s legal representative put the following to Johnson:
‘
So
ek wil dit aan u stel dat onder daardie drie faktore dit vir u
moontlik kan wees om ‘n fout te maak aangaande die identiteit

van die persone of presies wat daar gebeur het want eerstensnis u sig
beperk vanweë die lig en die afstand wat u staan. En
tweedens
vanweë die tempo waarteen die voorval plaasgevind het. So
voordat u aantwoord ek stel dit nie aan u dat u jok nie,
ek stel dit
aan u dat u moontlik van die feite verkeerd kan hê, onder
andere wat hulle bydra betref. Stem u saam met my?
---
Sorry
?
[27]
Despite the clarity of the question and its
sequentially reasoned summation of the evidence, Johnson’s
response indicated
that he either did not understand the question, or
that he did not hear it –or perhaps, as a possibility, he
required the
question to be repeated.
[28]
What followed was a complete undermining of
the purpose sought to be achieved by the appellant’s legal
representative when
the magistrate interjected as follows:
‘
U
sê, stem u saam as hulle sê jy maak ‘n fout dat
hulle het niks gedoen daar nie, dis Boetie wat gesteek het en

beskuldigde 1 het niks gemaak nie? --- Nee ek stem nie saam nie.
[29]
Needless to say Johnson’s response
did not compensate for the shortcomings in the case for the
prosecution.
[30]
This is also apparent from the testimony of
the witness Latola.
[31]
His evidence does not require detailed
examination. He experienced a great deal of stress while recounting
events in the witness
stand. He visited the deceased earlier that
day. When he left – by his estimate sometime after 17h00 –
he said that
it was already dark and upon exiting the deceased’s
yard into the street he encountered the appellant (known to him as
Porky)
along with Boetie and accused 1. He did not see the
appellant in possession of a knife. On viewing the surveillance
footage
he confirmed that he featured at 19:33 but clarified that he
was on his way home. The footage indicated that he was bespectacled

and somewhere behind him the witness Johnson appeared. There is a
considerable amount of confusion about whether Latola returned
to the
scene and what prompted him to do so, but much of what was traversed
with him about what he observed concerning who entered
the deceased’s
home is irrelevant to the material aspects of his testimony which,
quoted only where relevant, read as follows:
‘
U
sien hulle gaan in die huis in? --- Ja.
Wat sien u nog? --- Wat
verder aan weet ek nou nie wat het … gebeur het wat hulle daar
in die yard ingegaan het nie.’
[32]
From hereon, the evidence indicates that
Latola had already proceeded a distance into the street. As he made
his way home he was
side-tracked when Deondre Davies threw stone(s)
at the appellant and the other two men at which point he observed the
appellant
carrying a knife in his hand. According to Latola, the
appellant had by then been out of the yard and was in the street.
[33]
The prosecutor put it to Latola:
‘
Ek
verstaan u getuienis reg meneer u het nie gesien dat iemand vir die
oorledende steek nie? --- Nee want ek was nie op die, op
die toneel
gewees daardie, by die stekery gewees nie.’
[34]
Further on in his testimony, and what can
only be described as an attempt to either mislead or confuse Latola,
the prosecutor impermissibly
put it to him:
‘
En
die, en die beligting meneer soos wat dit is op die beeldmateriaal is
dit maar hoe dit elke in die aand daar lyk? Is dit hoe
die
beeldmateriaal lyk, ag die beligting --- Ja.
So jy kan duidelik sien
wat in die erwe gebeur? --- Ja’
[35]
In cross-examination Latola shifted
position on the aspect of visibility. His testimony reads:
‘
Die
vorige getuie Clement Johnson het vir ons gesê dat dit redelik
donker is in daardie erf. Die enigste lig wat daar was
was van ‘n
gloeilamp, ‘n bulb wat binne-in die huis gebrand het? ---
Ja.
…
So dit was relatief
donker in die erf en mens se sig was redelik beperk as vanweë
die beligting. Is dit reg? --- Ja.
En as ek u getuienis reg
kan opsom het u ook ‘n hele entjie van die voorval af gestaan.
U weet nie presies wat daar tussen
beskuldigde 1, Boetie en die
oorledende gebeur het nie? --- Ja.’
[36]
Albeit for minor blemishes, a fair
conspectus of Latola’s testimony reveals frankness. This
emerges from the version of the
appellant being put to him:
‘
En
u kan bevestig toe beskuldigde 2 die perseel genader het het u nie ‘n
mes of enige ander wapen by hom gesien nie. Dis slegs
toe hy uitgekom
het wat hy die mes gehad het? --- Uitgekom ja.
Beskuldigde 2 stem saam
met daardie weergawe. Sy instruksies is ook hy het nooit ‘n mes
gehad nie. Hy het wel ‘n mes
by Boetie gaan afvat want Boetie
is die person wat hom gesteek het, die oorledende. U sal nie weet
nie? --- Nee ek sal nie weet
nie.’
[37]
Turning to the version of the appellant.
[38]
The appellant and the deceased were known
to each other. Earlier during the day they were socialising at the
house of a mutual friend,
known as Basil. The deceased, without
reason, threatened to kill the appellant and assaulted him. There was
a struggle. The appellant
sustained a fractured nose and was stabbed
with a knife in his right hand causing him to sustain swelling and
fractures. A medical
report was produced to confirm the injuries.
Basil ushered the deceased out of the house but the appellant
remained there for a
while before returning to his home. On returning
home and upon learning that his brother Boetie and their father were
somewhere
up in the street on their way to the deceased’s
place, he went out to look for them. He was unarmed. When he got to
the yard
he saw Boetie stabbing the deceased with a knife. He
disarmed the knife from Boetie.
[39]
In cross-examination the appellant’s
testimony unfolded as follows:
‘
Nou
die beeldmateriaal wys dit baie duidelik dat u kom daar
aangehardloop. Is dit reg? --- Dis reg.
Toe … is
beskuldigde 1 en Boetie alreeds binne-in die erf, in die yard van die
oorledende? --- Dis reg.
Nou wat sien jy presies
wat gebeur toe daarso toe jy daar kom? --- Ek het gesien Boetie steek
vir die oorledende.
Waarmee? --- Met’n
mes.
Beskryf die mes meneer?
--- ‘n Groot mes.’
[40]
As for the presence of the co-accused, the
appellant had this to say in response to questions by the prosecutor:
‘…
en wat
maak nommer een toe jy sien Boetie steek hom? --- Ek het hom nie
gesien nie.
Hoe bedoel jy jy het hom
nie gesien nie? Hy is dan duidelik in die erf in? --- Ja ek was
gefokus op Boetie … vir Boetie gekeer.
[41]
The transcript indicates that the following
imputation was put to the appellant:
‘
U
het die mes uitgehaal uit jou regter heup volgens Clement? --- Ek dra
nie ‘n mes nie.’
[42]
The question is inaccurate. Johnson never
testified that he saw the appellant enter the yard with a knife on
his person and for
that reason he could not give detail about where
the knife was secreted. Moreover, it is nowhere apparent from the
transcript that
Johnson testified that he saw the appellant take out
the knife from his right hip.
[43]
As the appellant’s testimony
progressed he indicated that he believed that his co-accused together
with Boetie went over to
the deceased’s house because they
heard of the assault on the appellant earlier that day. Upon viewing
the surveillance footage
he protested that he was unarmed when he
entered the yard but was holding onto his cellphone on the right side
of his waist. He
maintained that he was not focussed on the presence
of his co-accused in the yard because his efforts were directed at
disarming
Boetie. He denied that he stabbed the deceased. He stated
that he disarmed Boetie using his left hand but conceded that upon
exiting
the yard he carried the knife in his right hand
notwithstanding the injury inflicted earlier by the deceased. He
confirmed that
Davies threw stone(s) as he exited the deceased’s
yard.
[44]
Insofar
as the proper approach to the evaluation of evidence in a criminal
trial is concerned, it is settled law that the onus is
on the
prosecution to prove its case beyond reasonable doubt. In
S
v Van der Meyden
[8]
the court said:
‘
The
onus of proof in a criminal case is discharged by the State if the
evidence establishes the guilt of the accused beyond reasonable

doubt. The corollary is that he is entitled to be acquitted if it is
reasonably possible that he might be innocent (see, for example,
R
v Difford
1937 AD 370
especially at 373, 383). These are not separate and
independent tests, but the expression of the same test when viewed
from opposite
perspectives. In order to convict, the evidence must
establish the guilt of the accused beyond reasonable doubt, which
will be
so only if there is at the same time no reasonable
possibility that an innocent explanation which has been put forward
might be
true. The two are inseparable, each being the logical
corollary of the other. In whichever form the test is expressed, it
must
be satisfied upon a consideration of all the evidence. A court
does not look at the evidence implicating the accused in isolation
in
order to determine whether there is proof beyond reasonable doubt,
and so too does it not look at the exculpatory evidence in
isolation
in order to determine whether it is reasonably possible that it might
be true.’
[9]
[45]
Van
der Meyden
was
cited with approval by the Supreme Court of Appeal in
S
v Chabalala
[10]
where it is stated:
‘
The
correct approach is to weigh up all the elements which points towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,

having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused’s guilt.’
[11]
[46]
The
appellant’s testimony comes down to a crude version that he was
not the perpetrator of the stabbing. It does not instil
confidence
that he was a credible witness. Nor does it automatically translate
into guilt. If his version is reasonably possibly
true then he must
be acquitted. Whether one subjectively believes him is not the test.
A court may only convict if it is satisfied
not only that the
explanation is improbable but that beyond any reasonable doubt it is
false.
[12]
[47]
Johnson emerges as the only witness who
might have seen the stabbing (within the time interval depicted in
the surveillance footage)
but it is not insignificant that his
evidence is materially lacking in the aspects that were not canvassed
with him. Latola on
the other hand was emphatic that he did not see
the stabbing. For reasons already dealt with, the surveillance
footage offers no
assistance and is no substitute for filling the
cavities in the direct testimony of the two witnesses. On the
available evidence
it must be acknowledged that visibility conditions
were limited and that events unfolded in a fast moving scene,
cumulatively throwing
a shroud of doubt on the reliability of the
evidence presented. In the circumstances the appellant’s
explanation leaves no
room for finding that it is improbable and
beyond any reasonable doubt, false.
[48]
The magistrate was not cognisant of the
limitations in the case presented by the prosecution particularly
those affecting Johnson’s
evidence. The discrepancies in the
evidence were not properly evaluated and the magistrate’s
reasoning to a significant extent
appears to have been manifestly
influenced by probabilities that exclude factoring the evidential
material accentuated in this
judgment.
[49]
The prosecution has clearly not discharged
the onus of proof beyond reasonable doubt. However improbable the
appellant’s version
might be it is doubtful if it is false.
[50]
Respectfully,
the magistrate’s approach attracted an erroneous result which
entitles this Court to interfere on appeal
[13]
.
[51]
In the result the following order issues:
51.1
The appeal is allowed.
51.2
The appellant’s conviction and sentence are set aside.
M S RUGUNANAN
JUDGE OF THE HIGH
COURT
I agree.
L ELLIS
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
For the Appellant:
D P Geldenhuys
Instructed by Legal
Aid South Africa
Makhanda
For the Respondent:
H Obermeyer
Instructed
by The Office of the Deputy Director of Public Prosecutions
Makhanda
Date
heard:
17
April 2024.
Date delivered:
07 May 2024.
[1]
Act 51 of 1977.
[2]
Initials used.
[3]
S v
Shilakwe
2012 (1) SACR 16
(SCA) para 11];
S
v Hadebe and Others
1998 (1) SACR 422
(SCA) at 426F-G
[4]
S v
Zondi
2003 (2) SACR 227
(W) para 9.
[5]
S v
Shilakwe
2012 (1) SACR 16
(SCA) para 11.
[6]
1986 (4) SA 117.
[7]
S v
Mthetwa
1972 (3) SA 766
(AD) at 768A-C.
[8]
S v Van
der Meyden
1997
(2) SA 79
(WLD);
2001 (2) SACR 97
(
Van
der Meyden
).
[9]
Ibid at 80H-81B.
[10]
S v
Chabalala
2003
(1) SACR 134 (SCA).
[11]
Ibid para 15.
[12]
S v V
2000 (1) SACR 453
(SCA) at 455
b.
[13]
S v
Hadebe and Others
1997 (2) SACR 641
(SCA) at 645
e-f.