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1989
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[1989] ZASCA 98
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S v Mkohle (639/88) [1989] ZASCA 98 (7 September 1989)
C MKOHLE
APPELLANT
and
THE STATE
RESPONDENT
Judgment by NESTADT JA
CASE NO. 639/88
/ccc
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
CEBISILE
MKOHLE
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: VAN HEERDEN, NESTADT JJA et NICHOLAS AJA
DATE HEARD
:
15 AUGUST 1989
DATE DELIVERED
: 7 SEPTEMBER 1989
JUDGMENT
NESTADT, JA
:
At about 3 o' clock on the morning of Saturday 24 January 1987, a certain
Jackson Nokoyo was shot in the neck with a shotgun. The
attack on him took place
in a
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black residential area called Old Crossroads in the district of Wynberg in
the Cape. He suffered a grievous injury from which he immediately
died.
These
events gave rise to the prosecution before WILLIAMSON J and assessors in the
Cape Provincial Division of appellant on a charge
of murder. Though denying his
guilt, he admitted shooting deceased. But, he contended, he was justified in so
doing on the ground
that he had acted in self-defence. The trial court, however,
rejected his evidence in support of this plea. Instead, it accepted
the State
version that the killing was unlawful. Appellant was, accordingly, convicted of
murder and, no extenuating circumstances
having been found, sentenced to death.
This appeal is against both his conviction and sentence.
In advancing the
appeal against the conviction, Mr
Wittenberg
, on behalf of appellant,
launched a wide-ranging and detailed attack against the trial court's
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credibility finding. This renders it necessary to canvass the evidence in
some detail. Before doing so, however, I would mention that
the following was
not in dispute. Appellant, aged 34, was a so-called special constable in the
South African Police. He lived in
Old Crossroads in a house which he shared with
his father, Jackson Mkohle, and Johannes Nongxaza. Johannes was also a police
constable
in the same unit as appellant. The 35 year-old deceased, whose
girl-friend was Gloria Nzamo, also lived in the township. He resided
with
Clifford Mkono. Nomute Mthwazi was an acquaintance of both appellant and
Clifford. Her husband was a colleague of appellant's.
On the night in question
she had been to a party at the hut of Mandla Kondile. It was situate roughly
between the huts of Clifford
and appellant.
The main witnesses for the State
were Johannes, Clifford, Gloria, Nomute and Mandla. I commence with the evidence
of Johannes. He
stated that he and appellant came
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off duty on the evening of 23 January 1987 at about 7:30 p m. Thereafter they
spent the night in each other's company, first at Mandla's
party (until about 10
p m) and then at a second shebeen in the area. At about 2:30 a m they left this
place on foot to go home. They
saw a group of three persons standing near a
parked car. Appellant wished to search them but Johannes was against doing this.
They
therefore parted. Johannes proceeded home. Appellant approached the group
of persons.
The tale of events was taken up by Clifford and Gloria. They and
deceased were the members of the group. Clifford owned a Fiat motor
car. The
nearest it could be parked to his hut was in the open, some 76 metres away. He
feared that in this unguarded position it
might be stolen or broken into. To
prevent this, he was sleeping in it on the night in question. In the early hours
of the morning
deceased arrived there from Clifford's home. He was accompanied
by Gloria. The two of them were carrying Clifford's four year-old
child. They
had, in
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Clifford's absence, been looking after him. However, he had begun to cry for
his father. Clifford took the child and put him to sleep
in the car. He,
deceased and Gloria were then standing outside the car conversing when Nomute
walked past. (Nomute testified that
she had been to Mandla's party.) She stopped
to talk to Clifford. The two of them indulged in some good-humoured banter.
Suddenly
appellant appeared. He was armed with a baton and a shotgun. It would
seem that, having heard the conversation between Clifford and
Nomute, he took
umbrage at what he regarded as Nomute's familiarity with Clifford. Or he was
angry simply because of her being out
so late. In any event, he hit Nomute with
his baton. She ran away. Appellant then turned his attention to Gloria. He asked
her what
she was doing there. Deceased intervened by saying that Gloria was his
wife. Appellant's reaction to this was to accuse deceased
of taking Gloria's
part. He threatened to hit deceased. According to Clifford deceased's
áttitude was one of
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"do as you wish." Gloria's testimony was slightly different. It was that
deceased asked appellant's forgiveness and said that he and
Gloria were on the
point of leaving. Appellant and deceased were then about 3 - 6 paces apart. The
next moment, and without more
ado, appellant shot deceased. It was in these
circumstances that deceased met his death.
Appellant told a different story.
He denied that he and Johannes had come off duty in the evening or that they had
gone to any parties.
He testified that their shift ended at 2 p m on the Friday.
Soon after arriving home shortly thereafter, Johannes left. Appellant
did not
see him again until after the shooting. He (appellant) stayed at home together
with his father. At about 9 p m he went to
bed. At about 3 o' clock the
following morning, he was woken by the sound of people talking outside his hut.
He got up, dressed and,
armed with his shotgun, went to the door. He opened it.
He saw a number of peopie outside. He estimated their number to be
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about ten. He asked them "What can I do for you?" There was no answer. He
cocked his gun. The persons moved off. He thought they were
up to no good. There
was a climate of unrest at the time and he feared that their design was to burn
down his hut. He wished to identify
and then report them. So he decided to
follow them. This he did for about 30 - 40 metres in the direction of Mandla's
place. They
then disappeared amongst the huts of the township. As he was
standing there Nomute appeared. She had come out of Mandla's house.
He scolded
her for being out on her own so late at night. He picked up a stick and hit her
lightly with it. He did not have his baton
with him. Nomute ran off. As he was
about to proceed home he heard from out of the darkness someone behind him say
"Here is one of
Botha's dogs." He took it to refer to him. He quickly turned
around. He had his gun in his hand. He saw three persons walking towards
him.
They were about 6 - 7 paces away. One of them appeared to be armed with what he
thought was a small
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firearm. It seemed to be pointed at him. Considering his life to be in
danger, he fired one shot "at the three people." They were
then about 4 paces
away from him. Two of them ran away. The third, however, having been hit,
collapsed on the ground. This was the
deceased.
Those were the two
incompatible versions before the court a
quo
. According to WILLIAMSON J,
Clifford and Gloria "made an extremely good impression." It was found that their
account of the night's
events was truthful, accurate and probable. They did not
contradict each other save in minor or unimportant respects. Moreover, their
version as to the events immediately preceding the shooting was supported by the
evidence of Nomute who, though not fully to be relied
on, (because she was
drunk) "came across as a good witness who has no axe to grind with the accused."
Appellant, on the other hand,
was found to be "an out and out liar"; an
"extraordinarily bad witness." In the result, the conclusion reached was that
"the picture
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painted by Clifford, Gloria and Nomute is the true one" and "the accused's
version cannot possibly be true."
The argument on behalf of appellant can be
briefly summarised. It was said that the evidence revealed that there was a
climate of
political unrest which pervaded the township at the time and in
particular a feeling of hostility on the part of its inhabitants
towards the
police; by reason of this, the possibility of the evidence against appellant
having been fabricated could not reasonably
be excluded; this, it was suggested,
might have been pursuant to some of the witnesses having conspired against him
and others being
"pressurised" to tell a false story; substance was given to
these fears by the numerous contradictions, examples of evasion and
untruthfulness
and certain improbabilities which it was submitted existed in the
evidence of the State witnesses; the trial court had overlooked
these; and it
had adopted an unduly critical approach to appellant's evidence which, in the
result, should not have been
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rejected.
Strong criticism was, to begin with, levelled at the evidence of
Johannes. It was said that he had clearly been untruthful in alleging
that he
and appellant had been on duty together for the afternoon shift. It was common
cause that this assertion was incorrect. His
account of where appellant, when
supposedly attending the party at Mandla's home, had sat and whether he and
appellant had paid for
the liquor they allegedly drank and whether there were
any other policemen present at the time was in conflict with Mandla's evidence
on these points. Subsequent to the shooting and when the police arrived at the
scene appellant through Johannes acting as interpreter,
told them, and in
particular Lt Oor, his version of what had happened. According to Lt Oor (who
testified for the State), appellant
made reference to the noise which he had
heard outside his home. Johannes, however, denied that appellant said anything
in this regard.
Most important, according to counsel,
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was that Johannes, when asked "Aren't you scared that if you don't say what
some people want you to say that something might happen
to you?", answered in
the affirmative.
I am not sure to what extent Johannes' evidence was rendered
unreliable by the matters referred to. For the most part they are not
dealt with
in the judgment of the trial court. This was probably because WILLIAMSON J
(though finding that "on balance" appellant's
assertion that he did not go out
that evening was not to be believed) based appellant's conviction primarily on
the evidence of Clifford
and Gloria and to a lesser extent on that of Nomute. In
my view he was justified in doing so.
Obviously Gloria, having had a
relationship with deceased, was not an entirely unbiased witness. But Clifford
was. His impartiality
is not to be impugned simply because deceased was his
tenant. Nor does the reference in the evidence of some of the witnesses to
there
being ill-feeling
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against the police provide a sufficiently firm foundation for the conspiracy
argument. This argument rests on a substantially speculative
basis. Indeed it
was not even put to the witnesses in question.
It is true that Clifford and
Gloria contradict each other. Whilst Clifford stated that after the shooting he
and Gloria walked away,
Gloria's evidence was that the two of them had run away.
Clifford said that appellant held his gun in his left hand but Gloria said
that
it was in his right hand. Clifford and Gloria testified that appellant struck
Nomute because of the manner in which she had
spoken to Clifford; Nomute's
explanation was that appellant was angry because she was out so late (which
version corresponded with
that of appellant). There was also conflicting
evidence as to whether appellant was carrying a rubber, or indeed any, baton.
Other
contradictions were pointed to. Yet I do not think that they or the ones
I
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have listed materially affect the credibility of the persons in question.
Contradictions
per se
do not lead to the rejection of a witness's
evidence. As NICHOLAS J, as he then was, observed in
S vs Oosthuizen
1982(3) S A 571(T) at 576 B - C, they may simply be indicative of an error. And
(at 576 G - H) it is stated that not every error
made by a witness affects his
credibility; in each case the trier of fact has to make an evaluation; taking
into account such matters
as the nature of the contradictions, their number and
importance, and their bearing on other parts of the witness's evidence.
WILLIAMSON
J obviously did this. In my view, no fault can be found with his
conclusion that what inconsistencies and differences there were,
were "of a
relatively minor nature and the sort of thing to be expected from honest but
imperfect recollection, observation and reconstruction."
One could add that, if
anything, the contradictions point away from the conspiracy relied on. And, of
further significance, Clifford
and Gloria corroborate each
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other in material respects. Their version is, moreover, supported by Nomute.
Her evidence places appellant on the scene in circumstances
inconsistent with
what he alleges them to have been. Though it was not entirely satisfactory, I am
not prepared to say that the trial
court erred in relying on it to the extent
that it did. She was friendly with appellant and in her evidence made
significant concessions
in his favour. Certainly, she does not appear to have
exaggerated the case against appellant.
It was argued that it was improbable
that appellant would shoot deceased simply because deceased apparently
intervened on the side
of Gloria. It is well-known, however, that crimes, even
of this nature, are committed consequent upon the offender becoming angry
for
the flimsiest of reasons. Nor can I agree that it is unlikely that Clifford
would have slept in his car to guard it as he alleges.
Though he was unarmed, he
presumably thought that his mere presence would be a sufficient
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deterrent. It was said that Clifford's failure, when reporting deceased's
death to the police that morning, to lay a charge against
appellant, or to
disclose that deceased lived with him, was inconsistent with his version and
that his evidence was thereby rendered
suspect. I do not agree. It was not to be
expected of Clifford that he should, in the circumstances then prevailing, have
been concerned
with these matters. The fact that he did make a report to the
police is rather indicative of him not having been one of the three
who accosted
appellant. On appellant's version he must have been. I referred earlier to the
light-hearted conversation which, according
to Clifford, took place between him
and Nomute when she walked past where Clifford was standing with Gloria and
deceased. What Clifford
jokingly said to her was that he wanted her to sleep in
the car and look after the child. Her reply, according to Clifford, was
"something
to the effect that I cannot afford her, I don't know what she meant
when she said that." In my view, this evidence
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has the ring of truth.
This brings me to an assessment of appellant's evidence. The trial judge was
mindful of the fact that already when the police arrived
at the scene appellant
gave an explanation to them of the shooting which, as it turned out, was
substantially the same as his evidence.
This was regarded as a factor in his
favour. I am not sure that this approach was correct. The general rule is that a
witness's previous
consistent statement has no probative value (
Hoffman and
Zeffert
; The South African Law of Evidence, 4th ed, 117).. An exception to
the rule occurs where it is suggested that the witness's story
is a recent
invention. That did not happen here. But, in any event, I am not persuaded that
the trial court was wrong in nevertheless
making a credibility finding adverse
to appellant. It is clear that his evidence was at variance in important
respects with a written
statement which he had made to the police on 17 February
1987. Secondly, he was untruthful in alleging
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that the police took possession of a panga at the scene.
Appellant's
suggestion in this regard was that it belonged to one of his three would-be
assailants. However, the evidence of a number
of policemen (who testified for
the State) was that had a panga been lying next to deceased (as appellant said)
it would have been
found and handed in at the police station. This did not
happen. There was no panga. In my view, Mr
Wittenberg's
suggestion that
it was misappropriated by one of the policemen is a far-fetched one. Thirdly, I
agree with the trial court that the
position in which deceased was found cannot
be reconciled with appellant's evidence on the point. This was justifiably (by
implication)
held to be a further reason for rejecting his evidence. It is to be
noted in this regard that appellant was not criticised for his
somewhat confused
evidence, given under cross-examination, as to
inter alia
where
Clifford's car was parked and where he met Nomute. I mention this because at the
commencement of re-examination appellant's
counsel made an
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application for the holding of an inspection in
loco
. Its purpose was
to enable appellant to point out in
situ
the exact location of the places
in question. The application was refused. Before us, it was contended that this
constituted an irregularity.
There is no merit in the complaint. An appeal court
is generally reluctant to hold that a trial court was wrong in refusing to hold
am inspection (
R vs Roberson
1958(1) S A 676(A) at 679 F - G). Here, no
fault can be found with WILLIAMSON J's exercise of his discretion (under
section
169
of the
Criminal Procedure Act, 51 of 1977
). As the learned judge stated at
the time, what appellant wished to point out would have served no useful
purpose.
It remains, on the appeal against the conviction, to deal with the
trial court's approach to the evidence of two witnesses called
by the defence.
The one was appellant's father. He testified that having arrived home at about 2
p m on the Friday afternoon, appellant,
whom he described
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as a "peaceful man", remained there until night-time when the two of them
went to sleep. This does support appellant's denial of Johannes'
evidence that
after supper they went out and spent the night at the two parties to which I
have referred. The father also corroborates
appellant's version of a
conversation which took place between Nomute and appellant one day after the
trial had begun. According
to appellant, Nomute, on this occasion, admitted to
him that Gloria had told her that her testimony should be the same as Gloria's
and that if she did not carry out this instruction, she "won't get any money."
Nomute's version was that all that happened was that
appellant asked her what
she had told the police. The trial court's approach to the father's evidence was
that he was "manifestly
biased in his son's favour" and, in relation to the
issue of where appellant spent the night of 23 January, "of no help on the
crucial
issues." In my opinion, there is no reason to differ. More especially is
this
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so seeing that, as regards appellant's alleged conversation with Nomute,
Nomute was, as I have said, found to be a good witness.
The evidence of the
other witness called by appellant may be briefly dealt with. He was a
psychiatrist. He purported to explain the
discrepancies between appellant's
evidence and his police statement. His opinion was that appellant's confusion
concerning the sequence
of events could have been caused by the drama of the
occasion with its consequent "heightened emotions or fear (and) anxiety." I
must
say that this almost amounts to expert evidence on appellant's credibility and
as such (if only for that reason) was not admissible.
But, in any event, it is
clear that the doctor had not examined appellant and was speaking, as he put it,
"hypothetically". His views
therefore were of no assistance. It is, in the
circumstances, not surprising that WILLIAMSON J did not have regard to them.
It need hardly be stressed that where a trial
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court's findings on credibility are in issue on appeal, as in this matter,
then, unless there has been a misdirection on fact, the
presumption is that the
conclusion is correct; the appellate court will only reverse it if convinced
that it is wrong. In my opinion
the court a
quo
did not misdirect itself.
And, having regard to the cumulative effect of the factors to which I have
referred, I am unpersuaded that
the rejection of appellant's version was
incorrect. Though the State evidence was not without blemish, it constituted a
formidable
case against appellant. There is no basis for finding that it might
have been a fabrication. The two eye-witnesses, Clifford and
Gloria,
corroborated each other. Their version was supported by Nomute. The trial court
was impressed by them. And, for good reason,
appellant was found to be an
untruthful witness. On the State case it is clear that appellant was guilty of
murder. He intentionally
shot a defenceless person without justification. In the
result, the appeal against the conviction must fail.
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In its judgment on extenuation, the court a
quo
considered the effect of (i) the incident having arisen, as
it was put in argument, from appellant doing what he believed to
be his
duty; (ii) appellant having acted on the impulse of the
moment, and (iii) appellant having drunk liquor that night. As
to (i), it was held that the incident:
"proclaims his arrogance and shows what a bully he was. Having this fearful
weapon in his possession and under his control clearly
allowed him to throw his
weight around. The deceased gave absolutely no provocation for the accused to
react against this defenceless
man with such brutality...(H)is actions show he
was prepared to be quite ruthless and brutal in enforcing what he conceived to
be
his authority."
Against this background it was
held, in relation to (ii), that
"the impulsiveness of his actions assumes a
more sinister
connotation and does not have the mitigating force which it
might
otherwise well possess." Though it was accepted that the
liquor ((iii) above) may have affected him "marginally", it
played a very
minor role and "did not to any material extent
hamper his judgment and
appreciation." In the result, it was
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found that, not even cumulatively, were the factors referred to sufficient to
reduce appellant's moral blameworthiness. Despite Mr
Wittenberg's
earnest
argument to the contrary, I do not think the trial court erred. Appellant bore
the onus of proof. He did not proffer a truthful
account of what influenced him.
And, what emerges from the State version was, as I have said, correctly rejected
as constituting
extenuating circumstances.
The appeal is dismissed. It is,
however, recorded that the State President has commuted appellant's sentence to
12 years' imprisonment.
NESTADT, JA
VAN HEERDEN, JA )
) CONCUR NICHOLAS, AJA
)