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2024
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[2024] ZAFSHC 189
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Rantapi and Another v S (A160/2023) [2024] ZAFSHC 189 (20 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case
no:
A
160/2023
In
the matter between
QENEHELO
RANTAPI
FIRST
APPELLANT
PULE
NTHABI
SECOND
APPELLANT
And
THE
STATE
RESPONDENT
Coram:
OPPERMAN J et MAJOSI AJ
Heard:
06 MAY 2024
Delivered:
20 JUNE 2024.
This
judgment was handed down in court and electronically by circulation
to the parties' representatives by email and released to
SAFLII. The
date and time for hand-down is deemed to be 15h00 on 20 June 2024.
Summary:
Criminal
law and procedure -
appeal against
convictions -
single witness
-
circumstantial
evidence -
discrepancies
in testimony state witnesses not material in nature -
appeal
dismissed.
ORDER
1.
Both the
appellants' appeal against the convictions on count one is dismissed.
2.
The second
appellant's appeal against the conviction on count two is dismissed.
JUDGMENT
MAJOSI
AJ (OPPERMAN J concurring)
[1]
The appellants
were convicted in the Regional Court, Bloemfontein, on one count of
murder under the purview of
s 51(1)
of the
Criminal Law Amendment Act
105 of 1997
and individually sentenced to ten years' imprisonment in
terms of
s 276(1)(b)
of the
Criminal Procedure Act 51 of 1977
, as
amended. The second appellant was convicted on a second count of
assault with the intent to do grievous bodily harm and sentenced
to
undergo two years' imprisonment. It was ordered that his sentence run
concurrently with the sentence imposed in count one
.
[2]
Both
appellants were declared unfit to possess firearms in terms of s 103
of the Firearm's Control Act 60 of 2000.The appellants
sought leave
to appeal their convictions only and were granted leave by ttie court
a quo. The second appellant was granted bail
pending appeal.
[3]
In their
notice of appeal, the appellants assailed their conviction for count
one on four main grounds namely:
(a)
That the court
a quo erred in finding that the state proved its case beyond a
reasonable doubt;
(b)
the court
a
quo
erred
in finding
that
the
state
proved
its case
against
the appellants
by way of circumstantial evidence;
(c)
the court a
quo erred in finding that the state witnesses were credible in light
of the contradictions in their testimony;
and
(d)
the court a
quo erred in accepting the version of the state and rejecting the
versions of the appellants.
For
count two, the second appellant contended that the court erred
twofold by finding that the state proved his guilt beyond a
reasonable doubt and accepting the evidence of the state while
rejecting his version.
[4]
It is common
cause that on the 27
th
of March 2011, the appellants, three state witnesses and the deceased
were at Lala's Tavern in separate groups, enjoying alcoholic
beverages. The appellants' bottle of Grants Whiskey went missing from
their table whilst they were smoking just beyond the door
of the
tavern. A brief background of
the
evidence is
required to
understand the chronology of
the
events.
[5]
The first
state witness Mr. Mokoni testified that on the day in question,
whilst smoking outside the tavern but still inside the
yard, the
first appellant approached him and demanded that he return a bottle
of whiskey that had gone missing from his table inside
the tavern.
After assuring him that he had nothing to do with it, Maphisa
(complainant in count two) approached and the first appellant
demanded the whiskey bottle from him as well, and a verbal argument
ensued. The argument escalated into a physical fight and the
second
appellant also approached them. He then thought it prudent to go
inside the tavern to call the deceased and left Maphisa
with the two
appellants. Upon his return with the deceased, Maphisa reported that
the second appellant had stabbed him with a knife
and he also
observed that he was bleeding. The deceased tried to intervene and
they ended up chasing the appellants without success.
[6]
Shortly after
their return, it was decided that they should walk Maphisa home as he
was bleeding and the three of them left the
tavern. They left Maphisa
at his residence whereafter, he went to his own home and slept.
Whilst in his slumber, a rough knock
sounded at the door and the
appellants demanded to see him. He told his mother not to open the
door and they eventually left.
[7]
-
Whilst at his
next-door neighbors' house between 06h00 and 07h00 in the morning,
his mother called him and when he reached his house,
he found the two
appellants there, bloodstained and carrying knives
.
They then
informed him that he was lucky that his mother was home as, if they
had met him in the street, they would have killed
him.
[8]
They then
proceeded to apologize to his mother as they had done something big
and, before they departed, told him to walk down the
road to see what
they had done. While he did as he was instructed,
he noticed
that a crowd had gathered in the distance,
it was there
where the deceased was found dead on the ground.
[9]
Mr. Maphisa
confirmed that he was also at Lala's Tavern with the deceased where
Mokoni joined them and he noted the appellants were
also there. He
later went out to smoke in the tavern's yard and found the first
appe
.
llant
outside,
angrily
speaking to
Mokoni. Whilst trying to enquire what the problem was, the first
appellant physically
attacked
him.
Mokoni
went
inside
the
tavern
after
which he
observed the
second appellant pulling out a Rambo knife which was used to stab him
in the shoulder. When Mokoni and the deceased
emerged from the
tavern, the two appellants
took off and
the gates were closed behind them. He was taken home and received
medical treatment the following day.
[10]
Ms. Mogape, the last state witness, intimated that she was also at
the same tavern at the time the events
in question transpired when
she met Maphisa, a family friend. After a commotion, she approached
him again and observed that he
was bleeding and he informed her that
the second appellant had stabbed him. The two appellants were chased
out but managed to return
by jumping the fence. They were chased out
again. Sometime later, she left Lala' Tavern and escorted the
deceased with her friend
to Chakela's Tavern. Upon their arrival
there, the deceased went inside the tavern whilst she took her friend
to her home, which
was directly opposite the tavern. When she
returned from this short distance, she found the deceased bleeding
from the head and
he had made a makeshift bandage out of his T-shirt.
[11]
When
she enquired,
the deceased
alleged that
the two appellants
had stabbed
him. The two of them went back inside the tavern and she noted that
the two appellants were at the second tavern. The
deceased left the
tavern on his own
,
which worried
her, so she enquired from the security
at the gate in
which direction he had gone in order
to
follow him. In
the meantime,
the two
appellants
had also left
the tavern and she encountered them in the street, going in the
opposite direction to the one she was going. When
she went further in
the direction that they were coming from, she found the deceased
lying on the ground with an open stab wound
with no signs of life.
[12]
The first
appellant indicated that whilst in the company of the second
appellant at Lala's Tavern, their bottle of whiskey went
missing and
he calmly approached Maphisa to enquire where their bottle was when
the deceased, unprovoked, grabbed him and pulled
him into the yard of
the tavern and fought with him. He intimated that Makoni, and Maphisa
came to support the deceased as well
as two security
guards,
who chased him
and the second
appellant
away. He
denied that he had any altercation with Maphisa or Mokoni and, that
after they were chased away by the security,
they left the
tavern for a party and only heard the following day that the deceased
had passed on. He denied that he assaulted or
stabbed the deceased or
any of their friends.
[13]
The second
appellant also testified and denied that he ever stabbed Maphisa or
that he and
the first appellant ever got involved in stabbing the deceased or any
of his friends. In fact, he indicated that it
was the deceased who
was the aggressor. The security guards did not assist his friend at
all, but rather fought them which in turn,
caused him to pull the
first appellant from the ground in order to flee, never to return, as
they were attending a friend's party.
He also denied that he had
stabbed Mokoni or the deceased.
[14]
This
court's
powers
to
interfere
on
appeal with the
findings
of
fact
of
a trial court are limited unless there is a clear misdirection
by
the court a quo.
[1]
The court a
quo was not only confronted with circumstantial evidence, but to a
certain extent, mutually destructive versions as
per the actual
commission of both offences,
as
both appellants denied their involvement.
[15]
In
S
v
Reddy
and
Others
[2]
the
following
was
stated
regarding
the
assessment
of circumstantial evidence at paragraph 90-E:
'In
assessing circumstantial evidence one needs to be careful not to
approach such evidence upon a piece-meal basis and to subject
each
individual piece of evidence to a consideration of whether it
excludes the reasonable possibility that the explanation given
by an
accused is true. The evidence needs to be considered in its totality.
It is only then that one can apply the oft-quoted dictum
in Rex v
Blom
1939 AD 188
at 202-203 where reference is made to two cardinal
rules of logic which cannot be ignored.'
[16]
In
S
v
Trainor
[3]
,
Navsa
JA said the following:
'A
conspectus
of all the evidence is required. Evidence that is reliable should be
weighed alongside such evidence as may be found
to be false.
Independently verifiable evidence, if any, should be weighed to see
if it supports any evidence tendered. In considering
whether evidence
is reliable, the quality of the evidence must of necessity be
evaluated, as must corroborative evidence, if any.
Evidence must of
course be evaluated against the onus on any particular issue or in
respect of the case in its entirety. The compartmentalised
and
fragmented approach of the magistrate is illogical and wrong
.'
[4]
_
[17]
The undisputed
facts are that the appellants confronted Mokoni and Maphisa for
stealing their bottle and that this confrontation
quickly turned
physical, resulting in the deceased being called from inside the
tavern by Mokoni. In his absence, Maphisa was stabbed
with a knife
which resulted in him bleeding from his shoulder. This
actively-bleeding wound was observed, not only by Mokoni, but
also by
Mogape. After being chased away, they were seen by Mogape returning,
jumping over the fence,
into the yard
of the tavern,
only to be
chased away
a
second
time
by the tavern owner. This, on all accounts, illustrates that the two
appellants still wanted to continue
with a further
altercation regarding
this bottle of
whiskey
.
[18]
After Maphisa
was taken home, the very same appellants came looking for him at his
place of residence, demanding that the door be
opened for them. When
their orders were not complied with, they left, only to be later seen
by Mogape at Chakela's Tavern, where
the deceased and Mogape happened
to be. Now, although Mogape did not see the deceased being stabbed
for the first time at this
tavern,
she
did find him,
still alive at
the time,
but
with a stab
wound
to the head
when she returned to the tavern after escorting her friend home.
Though a report was mad to her that the appellants
were responsible,
the leading of
this evidence was not adduced as required in terms of
s 3
of the
Law
of Evidence
Amendment Act
45 of 1988
and
was
appropriately
discarded
by the trial
court in its judgment.
[19]
When the
deceased left the tavern, Mogape enquired from the security staff
which direction the deceased took and, on her way, there,
she met up
with the two appellants coming from the direction she was heading
towards. It is where the deceased was found stabbed
to death,
surrounded by a gathering crowd.
[20]
Whilst at his neighbours house just before 06h00, Maphisa was called
back home, where he not only observed
the appellants to be
bloodstained and carrying knives but was also told by them .that he
was lucky they did not open the door,
as they would have killed him.
They informed him that he ought to take a walk down the street to
observe their handiwork, which
he did only to find the outcome of
that which forms the subject matter at hand.
[21]
The state
witnesses and appellants are well known to each other and identity
has never been placed in dispute. The appellants were
observed in
four separate locations, firstly, Lala's Tavern at varying occasions,
secondly, at the house of Maphisa once when they
demanded entry and
the other, holding knives, bloodstained, inviting him to view their
handiwork further down in the street. Thirdly,
at Chakela's
Tavern by
Mogape and lastly, individually
by Mogape,
in the very
same street where the deceased was found, devoid of life, with the
same crowd gathering
around the
body which was also observed by Mokoni.
[22]
At the first
location they were observed to be on a rampage for a bottle of
whiskey which resulted in physical altercations
which led to
Mokoni, the complainant in count two, being stabbed. When they were
chased away, they were seen jumping the fence by
Mogape
only to be
chased away again. This was an indication that they did not regard
the matter as resolved,
but still
wanted to engage the deceased and his companions further, which they
did by pursuing the deceased and his companions to
three other
locations.
[23]
The
court
a
quo
was
confronted
with
circumstantial evidence
on
both counts
and
suitably
deployed
the
principles
laid
down in
R
v Blom,
[5]
Each
piece of
evidence
was carefully evaluated by taking into consideration whether the
versions provided by
the
appellants
are
reasonably
possibly
true
in
light of
the
evidence
presented
by the state.
[24]
The trial
court correctly found that the various discrepancies in the testimony
of the state
witnesses were not material in nature and their evidence was an
honest account of the events. The court meticulously
evaluated the
evidence of Mokoni and found it to be reliable in all material
respects,
despite him
being a single witness. The court a quo's reasoning for both counts
cannot be faulted, having due regard to the conspectus
of the
evidence and the trial magistrate correctly rejected the versions of
the appellants as unreasonable and improbable. Accordingly,
the
appeal against convictions
in respect of
both counts must fail.
[25]
In the result,
the following order is made:
1.
Both the
appellants'
appeal against
the convictions
on count one
is dismissed.
2.
The
second
appellant's
appeal
against
the
conviction
on
count
two
is dismissed.
O.R.
MAJOSI AJ
I
concur
M.
OPPERMAN J
Appearances
For
the Appellant:
Ms.
S Kruger
Instructed
by:
Legal
Aid South Africa,
Bloemfontein
For
the Respondent:
Mr.
M Lencoe
Instructed
by
:
Director
of Public Prosecution,
Bloemfontein
[1]
S
v Francis
1991
(1) SACR 198
(A);
R
v Dhlumayo
and
Another
1948
(2) SA 677 (A).
[2]
S
v Reddy and Others
[1996)
ZASCA 55; 1996 (2) SACR 1 (A).
[3]
S
v Trainor
[2002]
ZASCA
125
;
2003 (1) SACR
35
(SCA).
[4]
Ibid
para 9.
[5]
R
v Blom
1939
AD
288.