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[2020] ZASCA 92
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Tshiki v S (358/2019) [2020] ZASCA 92 (18 August 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
No: 358/2019
In
the matter between:
MPHO
ROBINSON
TSHIKI APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Tshiki v The State
(358/2019)
[2020] ZASCA 92
(18 August 2020)
Coram:
PETSE DP and MOCUMIE, MOKGOHLOA, DLODLO and MBATHA JJA
Heard:
This appeal was, by consent between the
parties, disposed of without an oral hearing in terms of s 19(
a
)
of the
Superior Courts Act 10 of 2013
.
Delivered:
This judgment was handed down electronically by circulation to
the parties' representatives by email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10h00 on 18 August 2020.
Summary:
Criminal law and procedure – evidence of single witness who
was an accomplice – whether the trial court correctly applied
the cautionary rule – whether appellant’s alibi and his
denial of complicity are reasonably possibly true.
ORDER
On
appeal from:
North West Division of the High Court, Mahikeng
(Kgoele J, Gutta and Djaje JJ concurring, sitting as court of
appeal):
The
appeal is dismissed.
JUDGMENT
Mbatha
JA (Mocumie JA concurring):
[1]
The appellant, Mr Mpho Robinson Tshiki, and his co-accused, Mr Thomas
Maluleke (Maluleke), were arraigned in the North West
Division of the
High Court, sitting at Garankuwa on a charge of murder (count one),
robbery with aggravating circumstances (count
two), unlawful
possession of a firearm (count three) and unlawful possession of
ammunition (count four). The provisions of s 51(1)
and 51(2) of the
Criminal Law Amendment Act 105 of 1997 (the CLAA) applied to counts
one and two, respectively. Despite his plea
of not guilty to all
counts, the appellant was convicted as charged. The trial court found
no substantial and compelling circumstances
that warranted a
deviation from the minimum sentences than the ones prescribed in
terms of the CLAA. He was accordingly sentenced
to life imprisonment
on count one, 15 years’ imprisonment on count two, three years’
imprisonment and two years’
imprisonment on counts three and
four respectively.
[2]
Aggrieved by this result, the appellant applied for leave to appeal
against both his convictions and resultant sentences. The
trial court
granted him leave to appeal to the full court against the convictions
only refusing him leave against the sentences.
His appeal to the full
court failed. Subsequently, the appellant was granted special leave
to appeal by this Court against the
dismissal of his appeal by the
full court, hence the present appeal.
[3]
A brief summary of the relevant evidence adduced at the trial now
follows. On the night of 31 August 2006, Mr Motsepe (the deceased),
enjoyed a social evening in the company of Ms Moses Lydia Motsumi and
Ms Pinkie Mngubeni, at the house of the former in Odinburg,
Garankuwa. Later, he left to buy cigarettes and cold drink at a
nearby shop. The deceased had been gone for quite a while when
the
two ladies heard the sound of a gunshot. Concerned about this
development and the safety of the deceased, they called the deceased
on his mobile phone which remained unanswered. This prompted Ms
Motsumi to rush to the house of her neighbour Mr Sipho Makinita,
a
police officer, to alert him of their concerns about the safety of
the deceased after they heard the gunshot. After arming himself
with
his service firearm, Mr Makinita proceeded by car in the direction
that the deceased had been headed. As Mr Makinita got onto
the road,
and within a distance of about six metres, he saw a human body lying
on the side of the road. As he cast the headlights
of his motor
vehicle towards the body, he identified the body as that of the
deceased. He then enlisted the assistance of the police
from the
Klipgat Police Station. Upon their arrival, the police took over the
scene of the crime.
[4]
It is common cause that the deceased died as a result of a gunshot
wound in the head, and that his cash and grey-coloured Motorola
mobile phone were missing. Due to the lack of eye witnesses, the
docket lay fallow at the Klipgat Police Station for several months,
until Captain Tlhapi (Capt. Tlhapi) from the Haartbeespoort Dam
detective services took over the investigation. Capt. Tlhapi’s
investigative instincts spurred a realisation that he could trace the
perpetrators through the records of the stolen mobile phone.
Vodacom
provided Capt. Tlhapi with the relevant records, sought in terms of s
205 of the Criminal Procedure Act 51 of 1977
(the CPA). The
records were then forensically analysed by the Technical Support Unit
of the South African Police Service. The results
thereof enabled
Capt. Tlhapi to follow the trail of the mobile phone to the then
possessor, Ms Mary Shilenge. Although the phone
had exchanged hands
from Maluleke to Mr Tebogo Mngubeni (Tebogo), then to Ms Mngubeni
(Tebogo’s sister), thereafter to a
taxi driver and finally to
Ms Shilenge, it became common cause that it was the same mobile phone
of which the deceased was robbed.
That the cell phone recovered from
Ms Shilenge belonged to the deceased was also confirmed by the
deceased’s son, also
called Thomas, and Ms Gumede. The recovery
of the mobile phone ultimately led to the arrest of Maluleke.
[5]
Capt. Tlhapi testified that when he interviewed Maluleke, the latter
informed him that he gave the deceased’s phone to
Tebogo, his
friend and neighbour, as a gift. Maluleke related to Capt. Tlhapi
that on the night of the robbery the appellant, being
his friend,
requested him to accompany the appellant to Odinburg, Mabopane, to
look for money. The appellant was armed with a firearm.
En route to
Odinburg they first came across two women, whom the appellant said
must be ignored as they had no money. Shortly thereafter,
they came
across a man carrying two bottles of beer and cold drink, whereupon
the appellant, without uttering a word, fired a shot
in the head of
that man. They searched the man and robbed him of cash and a grey
Motorola mobile phone. Maluleke informed Capt.
Tlhapi that he did not
like the phone that was given to him by the appellant hence he gave
it to Tebogo.
[6]
Pursuant to this interview Capt. Tlhapi arrested Maluleke, but later
decided to release him so as to assist in tracking down
the
appellant, based on the allegations by Maluleke that it was the
appellant who had shot and killed the deceased. Maluleke, instead,
vanished into thin air. Capt. Tlhapi finally arrested the appellant
and Maluleke in Groblersdal, albeit at different times. The
cross examination of the appellant by counsel for Maluleke
elicited that the appellant, at the time of his arrest, was living
in
Grobelaarsdal whilst Maluleke lived in Leeufontein, about 40
kilometers away from Groberlaarsdal.
[7]
The State also led the evidence of Warrant Officer Hezekiel
Seforolwane (W/O Seforolwane) who was investigating an unrelated
robbery. W/O Seforolwane’s investigation led him to one
Thabiso who took him to the home of his friend, Maluleke. Maluleke
was alleged to be the person who was in possession of the firearm
used in the robbery that was investigated by W/O Seforolwane.
W/O
Seforolwane testified that upon his arrival at Maluleke’s home,
an unknown man ran out of the shack. They gave chase
to apprehend the
fleeing man but he outran them. An elderly man found at the premises
identified himself as Maluleke’s father.
He informed them that
it was Maluleke who ran away upon their arrival. Having been given
permission by Maluleke’s father
to search the shack, W/O
Seforolwane found a firearm between the mattress and the base of the
bed. In a strange twist of fate,
this firearm was positively linked
by forensic evidence to the firearm that was used to kill the
deceased.
[8]
The State called other witnesses whose evidence is not necessary to
canvas in this judgment. At the end of the State’s
case the
appellant brought an application for his discharge in terms of s 174
of the CPA. The trial court refused the appellant’s
application. The appellant testified as the sole witness in his
defence. Maluleke also testified in his own defence and called
his
girlfriend, Ms Dimakatso Mokoka, as his witness.
[9]
Maluleke’s evidence in court, which is different to what he
told Capt. Tlhapi, was briefly the following. On 31 August
2006, the
appellant requested that he accompany him to Odinburg to collect his
money from a certain gentleman. En route, they came
across a man whom
the appellant identified as the man he was looking for. The appellant
proceeded towards that man, and Maluleke
remained behind at a
distance of about seven paces away from them. The man and the
appellant strolled away together, but a few
minutes later Maluleke
sensed that there was some kind of a misunderstanding between them.
When the appellant and that man were
at a distance of about 11 paces
away from him he heard a gunshot coming from their direction but
could not figure out as to who
had fired the shot.
[10]
This unexpected turn of events shocked Maluleke and he ran back home
where he sat on the porch of his parents’ home.
Whilst seated
there, the appellant arrived and told him to stop acting like a fool.
The appellant showed him money and a mobile
phone, which he alleged
he had robbed the deceased of. The appellant offered him the phone,
which he reluctantly accepted after
the appellant threatened him by
firing a shot in the air. Maluleke testified that they thereafter
entered his shack. Maluleke felt
uncomfortable in the presence of the
appellant and, as a result, he went outside under the pretext that he
was going to the toilet.
Once outside, he jumped over the fence to
the neighbouring yard where he met Tebogo to whom he related the
events of that night.
He handed the mobile phone to Tebogo and then
left. After some weeks he returned home to find that the appellant
was no longer
at his home. Maluleke called his then girlfriend, Ms
Mokoka, as a witness. Ms Mokoka’s testimony was that one night,
in 2007,
the appellant unexpectedly came to where she and Maluleke
were sleeping and assaulted Maluleke, whilst demanding his firearm
from
Maluleke.
[11]
During his testimony, the appellant maintained that he was not
involved in the commission of the offences as he was at work
at
Morula Sun. When it was put to him during cross-examination that the
records of his erstwhile employer confirmed that he was
not at work
on the night in question, the appellant testified that if that was
the case, he could only have been with his then
girlfriend, Ms
Molebogeng Gumbu, who was called as a State witness to corroborate
his alibi. The State could hardly disavow her
evidence.
[12]
The appellant’s challenge of his conviction is two-pronged.
Firstly, he argued that he ought to have been discharged
at the end
of the State’s case in terms of s 174 of the CPA, as there
was no evidence which linked him to the commission
of the offences.
Secondly, he argued that he was convicted on the evidence of a single
witness who was an accomplice. It was submitted
that the trial court
paid lip service to the cautionary rules in dealing with the evidence
of a single witness, and an accomplice,
whose evidence was fraught
with material contradictions and inconsistencies, tailored to
exculpate himself.
[13]
In criminal proceedings, the State bears the onus to prove the
accused’s guilt beyond a reasonable doubt. The accused’s
version cannot be rejected only on the basis that it is improbable,
but only once the trial court has found, on credible evidence,
that
the explanation is false beyond a reasonable doubt.
[1]
The corollary is that, if the accused’s version is reasonably
possibly true, the accused is entitled to an acquittal. Equally
trite
is that the appellant’s conviction can only be sustained if,
after consideration of all the evidence, his version of
events is
found to be false.
[14
Section 208 of the CPA provides that ‘an accused may be
convicted of any offence on the single evidence of any competent
witness.’ The litmus test of a single witness was laid down in
R v
Mokoena
[2]
and succinctly set out in
S
v Sauls and Others
[3]
as follows:
‘
The absence of the
word “credible” is of no significance; the single witness
must still be credible, but there are. . .
“indefinite
degrees in this character we call credibility. . . There is no
rule of thumb test or formula to apply when
it comes to a
consideration of the credibility of the single witness. . . The trial
Judge will weigh his evidence, will consider
its merits and demerits
and, having done so, will decide whether it is trustworthy and
whether, despite the fact that there are
shortcomings or defects or
contradictions in the testimony, he is satisfied that the truth has
been told.’
The
trial court should have been mindful that it can only convict on such
evidence if it is satisfactory in all respects. At the
same time this
Court, as a court of appeal, is reticent to interfere with the
credibility findings of the trial court as well as
the evaluation of
the oral evidence, unless there is a material misdirection.
[15]
The
cautionary
rule applicable to the evidence of an accomplice was explained as
follows in S v
Hlapezula
and Others
1965
(4) SA 439
(A)
at 440 D-H:
‘
It is well
settled
that
the testimony of an accomplice requires particular scrutiny because
of the cumulative effect of the following factors. First,
he is a
self
-
confessed
criminal. Second, various considerations may lead him falsely to
implicate the accused, for example, a desire to shield
a culprit or,
particularly where he has not been sentenced, the hope of clemency.
Third, by reason of his inside knowledge, he
has a deceptive facility
for convincing description
–
his
only fiction being the substitution of the accused for the culprit.
Accordingly
. . .
there
has grown up a cautionary rule of practice requiring (a) recognition
by the
trial
court of the foregoing dangers, and (b) the safeguard of some factor
reducing the risk of a wrong conviction, such
as a
corroboration implicating the accused in the commission of the
offence, or the absence of gainsaying evidence from him, or
his
mendacity as a witness, or the implication by the
accomplice of someone near or dear to him; see in particular
R
v Ncanana
,
1948
(4)
SA
399
(A
D
)
at 405-6;
R
v Gumede
,
1949
(3) SA 749
(A
D
)
at 758;
R
v
Nqamtweni
and
Another
,
1959
(1) SA 849
(A
)
at 897G-898D.
Satisfaction
of the cautionary rule does not necessarily warrant a conviction, for
the ultimate requirement is proof beyond reasonable
doubt, and this
depends upon an appraisal of all the evidence and the degree of the
safeguards
aforementioned.’
[16]
The objective evidence given by the State witnesses is, at best for
the State, neutral or at worst exculpatory. The appellant
was
convicted solely on the evidence of Maluleke, his erstwhile
co-accused in the trial, thus an accomplice, who was also a single
witness. An assessment of Maluleke’s evidence suggests that his
evidence was not clear and satisfactory. On his version,
it is very
difficult to ascertain how the deceased was killed and robbed of his
possessions. There were two different versions
before the trial
court. Capt. Tlhapi testified that Maluleke informed him that he
was fetched by the appellant to go and look
for money and that they
came across a man carrying beer and cold drink bottles. The appellant
shot the man without having said
a word to him. The version given by
Maluleke at the trial and put to the State witnesses, was that he was
fetched by the appellant
to collect money from someone known to the
appellant. They came across this person on the road, the appellant
advanced towards
him, conversed with him and that led to the killing
of the deceased. The first version suggests that they were to commit
the robbery
and the second one that Maluleke was merely accompanying
the appellant.
[17]
The version given by Maluleke, who portrayed himself as an innocent
bystander, does not make sense. When he was asked what
he was shown
by the appellant when the appellant found him at his home after the
appellant had purportedly shot the deceased, this
interaction
followed:
‘
[Thomas’
counsel:] What did he show you?
[Appellant:] He showed me
money and a phone.
Court: How much money?
[Appellant:] He did not
show me how much it was, and that is the practice. One will never
reveal that to you.’
Those
words could not have been uttered by an innocent bystander.
[18]
Maluleke’s evidence was also in direct conflict with that of
Tebogo, who testified that Maluleke sought accommodation
from his
place because at Maluleke’s home they were not opening for him
due to his late arrival. Tebogo remained steadfast
on this issue even
under cross-examination. This was in conflict with Maluleke’s
evidence that he sought cover at Tebogo’s
place after running
away from the appellant and that he told Tebogo what had happened.
[19]
Maluleke’s evidence was that he left the appellant in his own
shack after the appellant had fired a shot. The appellant
must have
been left in possession of his own firearm. Maluleke testified that
the appellant came back one night in 2007 and assaulted
him looking
for his firearm, but the firearm had already been recovered from his
shack by W/O Seforolwane in 2006. The trial court
accepted that the
appellant handed a firearm to Maluleke one morning, despite the fact
that Maluleke had denied this favourable
fact when he was
cross-examined by the prosecutor as follows:
‘
[Prosecutor:]
According to you, never in 2006 [did] accused 2 [give] you a firearm?
[Appellant:] There was no
need for him to give me a firearm. I did not need a firearm.’
Further
than that, the trial court accepted the evidence of Ms Gumbu that the
appellant told her that he gave a firearm to Malueke,
without Ms
Gumbu having seen what the wrapping contained. Even if it had been a
firearm there was no evidence to suggest that it
was the firearm
linked to the killing of the deceased. It was suggested to W/O
Seforolwane by counsel for Maluleke that Maluleke
would dispute that
he was at home on W/O Seforolwane’s arrival. This shows that
Maluleke is a liar who kept on tailoring
his evidence to exculpate
himself.
[20]
The following extract shows the inconsistencies in the evidence of
Maluleke:
‘
[Thomas’
counsel:] So I just [need] to understand from you. 2006, at the time
of the incident where was he staying?
[Thomas:] Well he was
staying at the place where he had rented either a room or a house,
and where he stayed with a certain girl.’
In
the same breath, when he was asked by his counsel what he meant by
saying that between 2005 and 2010 the appellant lived at his
place,
Maluleke responded by stating that ‘well he used to come to my
home where he would even sleep over while renting this
room in
question, and at times he would come with his girlfriend, and they
would put up at my home.’ This was denied by the
appellant’s
then girlfriend, Ms Gumbu, who testified that the appellant lived
with a relative and later on they moved in
together. This was also
said against the backdrop of the undisputed evidence of the appellant
that he left Garankuwa in December
2006.
[21]
To show that Maluleke was an unmitigated liar, counsel for the
appellant posed the following questions to him:
‘
[Appellant’s
counsel:] I mean sir, at the time you did not know who fired the
shot. Whether it was accused 2 or it was the
old man, he was
standing…. [incomplete]. You did not know what happened,
whether he is alive or he is not. You did not know….
[Thomas:] But that is
what I said. And what is it that I was supposed to tell my parents?’
The cross examination of
Maluleke continued:
‘
[Appellant’s
counsel:] You keep on asking the question as to what were you going
to tell your parents
[Thomas:] I repeat what I
said that, I did not know who fired a shot or who was shot under the
circumstances or at the time.’
This
was against the backdrop of a person who ran off because of being
overwhelmed and terrified about what had suddenly happened
in his
presence. The version given by Maluleke to Capt. Tlhapi was that the
deceased was shot in the head but when he testified,
his version was
that he was unable to see who had a firearm or who fired the shot as
it was dark and he was some distance away
from where the shooting
occurred. He said emphatically ‘I repeat what I said that, I
did not know who fired a shot or who
was shot under the circumstances
or at the time.’ This again touches on the improbability of his
version.
[22]
It is very difficult to get a clear picture of the chronological
sequence of events from Maluleke’s evidence. The evidence
vacillates between the incidents occurring in 2006 and one or two
years later. Maluleke’s evidence should have given some
kind of
certainty as to the time frames of the incidents, from the time of
the commission of the offences up to the time of the
finding of the
firearm at his place of residence. This was exacerbated by the lack
of a written statement given by Maluleke to
Capt. Tlhapi.
Maluleke took advantage of Capt. Tlhapi, shifted the blame to the
appellant, was released from custody and disappeared.
Maluleke could
not explain why he ran away having informed Capt. Tlhapi that the
deceased was killed by the appellant.
[23]
In a criminal trial, a court’s approach in assessing evidence
is to weigh up all the elements that point towards the
guilt of the
accused against all that which is indicative of their 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 (
S v Chabalala
2003 (1) SACR 134
(SCA) para 15).
[24]
Given the many improbabilities in Maluleke’s account, coupled
with contradictions in his own evidence and the objective
facts, the
trial court erred in relying on his evidence as proof of the
commission of offences beyond a reasonable doubt. The deficiencies
in
Maluleke’s evidence, considered holistically, revealed a
wanting version. This is apparent from the fact that at the plea
explanation stage or anytime thereafter, Maluleke did not disclose to
the court that it was the appellant who killed the deceased.
Maluleke
also preferred to remain silent and not disclose the basis of his
defence. It was also never suggested to any of the state
witnesses
who testified prior to Capt. Tlhapi that he was going to implicate
the appellant in the commission of the offences. This
aspect of the
evidence was introduced for the first time by Capt. Tlhapi in his
evidence in chief. It is clear that Maluleke tried
to challenge the
version allegedly given by him to Capt. Tlhapi as his counsel
challenged the admissibility of the alleged confession
by Maluleke
which was not reduced in writing. It was only at this stage that it
was suggested to Capt. Tlhapi that Maluleke was
to testify that it
was the appellant who shot the deceased. The trial court accepted
that it was the appellant who shot the deceased
only on the say-so of
Maluleke. In this regard the trial court failed to heed what is now
trite, that admissions made by an accused
are admissible against that
particular accused and misdirected itself in this regard.
[25]
To use the words of Petse JA in
S v Mulaudzi
[2016] ZASCA 70
,
in the circumstances of this case, it was not appropriate for the
trial court to accept the evidence of Maluleke and reject that
of the
appellant. In
S v Dladla
1980 (1) SA 526
(A) at 530A-B, this
Court stated:
‘
Where
a witness who is also an accused on trial not only makes a very poor
impression on the Court and gives evidence which is singularly
lacking in consistency and quality, but also appears to be a witness
prone to exonerating himself or minimising his own responsibility
at
the expense of his co-accused to whom he assigns a progressively
greater part in the crime . . .’
A
trial court should be more cautious.
[26]
Apart from the fact that Maluleke’s evidence was contradictory
on material aspects, it was solicited illegally. It is
on record that
Capt. Tlhapi did not explain his constitutional rights before he made
any such exculpatory statement to him, i.e
that he had the right to
remain silent and not incriminate himself. That if he chose to
incriminate himself such evidence shall
be used against him in a
court of law. What he allegedly told Capt. Tlhapi was also not
reduced to writing as a warrant officer
of so many years ought to
have known. He proffered no reason why he did not reduce what
Maluleke purportedly confessed to him into
writing to avoid loss of
memory that he clearly suffered from, which the trial court took note
of.
[27]
In addition, there was no corroboration of Maluleke’s evidence.
And in the absence thereof the available evidence does
not justify a
finding that the appellant shot and killed the deceased. The ultimate
test was whether the State had proof beyond
a reasonable doubt, which
was not the case in this matter. A conviction cannot arise from a
mendaciousness of the evidence of an
accomplice.
[28]
The trial court also misdirected itself in finding that the appellant
and Maluleke acted in furtherance of a common purpose
as Maluleke
exonerated himself. It cannot be said, on Maluleke’s version in
court, that there was a prior arrangement or
an active association by
Maluleke, which could have triggered liability based on the doctrine
of common purpose. Also reliance
on Capt. Tlhapi’s statement
for a conviction on the doctrine of common purpose lends itself to
the dangers of fabrication.
A previous consistent statement is never
evidence of facts but can only be invoked to impair the credibility
of the witness.
[29]
In considering whether the appellant’s version was reasonably
possibly true, the following is noteworthy. The appellant
acknowledged that Maluleke was an acquaintance whom he trained in
martial arts. The appellant testified that he arrived in Mabopane
in
mid-2006, where he initially sojourned at his aunt’s place for
a while. He found work at Morula Sun where he worked from
June 2006
to 31 December 2006. The appellant later moved in with his
girlfriend, who also worked at Morula Sun. The appellant denied
having been in the company of Maluleke on the night the deceased was
killed and denied that he committed the offences with which
he was
charged. He testified that on the night of 31 August 2006 he was on
duty from 16h00 till 02h00 the following morning. He
denied having
visited Maluleke in 2007 to demand a firearm from him nor having met
Maluleke’s girlfriend.
[30]
Under cross-examination, the appellant confirmed that a clock system
was used at his place of employment. The prosecutor produced
a
document recording the appellant’s shift on the day in
question. The cross-examination of the appellant followed this
sequence regarding this aspect of the evidence:
‘
Court: And who
produced this document?
[Prosecutor:] It is the
head of security for Morula Sun, who I believe as indicated that I am
provisionally dealing with this evidence
whilst the accused is still
on the stand, and if he needs to introduce it later, that head of
security indicated that he is available
to assist us in that regard.
Court: I see.
[Prosecutor:] And just
to bring it to the attention of the Court, this particular
information was requested by previous counsel
that I must request the
IO to go and get this information for them.
Court: I see. The
previous counsel for accused 2.
[Prosecutor:] That is
correct M’Lord.’
From
the interaction, it can therefore not be said that the appellant
deliberately tried to mislead the court when he stated that
he was at
work. The trial court should have taken cognisance that he was a
shift worker, whose shift hours were not static and
the incident took
place seven years before the commencement of the trial. It was also
not in dispute that he was employed at Morula
Sun untill December
2006. The document showed that he knocked off at 18h06 on the day
when the deceased was killed. The appellant,
when confronted with
this conclusive proof regarding his whereabouts on the night in
question, testified that due to the lapse
of time he believed that he
could only have been at work. The only alternative that he proffered
for his whereabouts was that he
could have been with his girlfriend
as it was at night. It tallies with Ms Gumbu’s evidence as a
State witness that she was
mostly in the company of the appellant at
night as she was scared of being left alone in their rented
accommodation. The evidence
of his girlfriend corroborated that of
the appellant in that he initially lived with a relative and that
later on they shared accommodation.
[31]
This fact was acknowledged by the trial judge in the judgment where
he found that the evidence of the appellant was consistent
throughout:
‘
This case started
in February this year, and at the time when trial started, the
defence of accused 2 it was clear it was an alibi,
and he maintained
this defence throughout the trial. To every witness for the State who
purported to implicate him, his defence
was, I was at work that
night. I could not have been at the scene of the crime. This is what
he repeated under oath when he gave
evidence.’
The
court went on further to state that:
‘
Towards the end of
his cross-examination by counsel for the State he was shown a
document which proved him wrong. He conceded that
he was wrong, but
ascribed it to lack of memory not to deliberately telling lies.’
The
trial court still went on to find that as a brilliant educated
person, the appellant could have long checked whether the defence
he
wanted to place before the court would have been correct. I do not
agree with this conclusion. The unrefuted fact is that the
appellant
through his former counsel initiated the move to have the clocking
records obtained from Morula Sun. The appellant could
not have been
expected to put the defence of an alibi to the rest of the state
witnesses, but it was raised appropriately during
the
cross-examination of Capt. Tlhapi.
[32]
It is trite that there is no onus on the accused person to establish
their alibi. If it might be reasonably true they must
be acquitted
and it does not have to be considered in isolation from other
evidence. The correct approach is to consider it in
the light of the
totality of the evidence presented before court. In evaluating the
defence of an alibi, in
R v Hlongwane
[1959] 3 All SA 308
(A);
1959 (3) SA 337
(A) at 339C-D (see also
R v Biya
[1952] 4 All
SA 304
(A);
1952 (4) SA 514
(AD) at 521), where the accused denied
complicity, Holmes JA stated as follows:
‘
At the conclusion
of the whole case the issues were: (a) whether the alibi might
reasonably be true and (b) whether denial of complicity
might
reasonably be true. An affirmative answer to either (a) or (b) would
mean that the Crown has failed to prove beyond a reasonable
doubt
that the accused was one of the robbers.’
The
phrase ‘might reasonably be true’ clearly refers to both
denial of complicity and alibi. If the version of the accused
is
reasonably possibly true they must be acquitted. For the court to
convict the accused, their version or alibi must be false
beyond a
reasonable doubt (see
Shusha v S
[2011] ZASCA 171
para 10).
[33]
The appellant’s alibi should have been weighed against the
totality of the evidence. The State should have led evidence
linking
the appellant to the crime, which evidence must be sufficient and
credible. As stated by this Court in
S v Combrinck
[2011]
ZASCA 116
;
2012 (1) SACR 93
(SCA) para 15:
‘
It is trite that
the State must prove its case beyond reasonable doubt and that no
onus rests on the accused person to prove his
innocence. The standard
of proof on the State and the approach of a trier of fact to the
explanation proffered by an accused person
has been discussed in
various decisions of this Court and of the high court (see
R v
Difford
1937 AD 370
at 373;
S v Van der Meyden
1999 (1) SA
447
(w) at 448F-I). It suffices for present purposes to state that it
is well settled that the evidence must be looked at holistically.’
The
trial court failed to heed this judicial injunction and therefore
committed a material misdirection.
[34]
This Court in
S v
Musiker
2013 (1) SACR 517
(SCA) para
15-16
held that once an alibi has been
raised, the alibi has to be accepted; unless it can be proven that it
is false beyond a reasonable
doubt.
S v
Burger and others
2010 (2) SACR 1
(SCA)
para 30 held that
it is worth noting that
mere lies for an alibi defence or for alibi evidence does not warrant
‘punishment for untruthful evidence.’
However, where an
alibi is presented and it contradicts evidence presented before the
court, and the alibi later turns out to be
a lie (or falsehood), the
lie together with the other evidence of the accused as a whole may
point towards his or her guilt in
certain cases. In summary, the
above authorities regarding the defence of an alibi show that the
trial court failed to look at
the totality of the evidence presented
before it when it considered the alibi evidence and whether it may be
reasonably possibly
true.
[35]
The application for discharge at the end of the State’s case
was correctly dismissed by the trial court, as it became
very clear
during the trial that the appellant’s co-accused wanted to
implicate the appellant in the commission of the offences.
The
refusal of a discharge entails the exercise of discretion and cannot
be a subject of an appeal. In this regard
E
Du Toit et al
[4]
opine as follows:
‘
The decision to
refuse a discharge is a matter of solely within the discretion of the
presiding officer and may not be questioned
on appeal (
R v
Lakatula & Others
1919 AD 362
at 363 - 364. The section gives
the court a discretion in deciding whether to discharge an accused at
the conclusion of the State
case. This discretion must be exercised
judicially and it is wrong to prescribe to the court how and when it
should be exercised
in favour of an accused.’
In
S v Lubaxa
[2001] ZASCA 100
;
[2002] 2 All SA 107
(A) para 21
this
Court
held
that whether, or in what circumstances, a trial court should
discharge an accused who might be incriminated by their co-accused,
is a question that cannot be answered in the abstract as the
circumstances in which the question arises are varied. The Court went
on to state that while there might be cases in which it would be
unfair not to do so, one can envisage circumstances in which to
do so
would compromise the proper administration of justice.
More recently in
S v Aggliotti
[2010] ZAGPJHC
129;
2011 (2) SACR 437
(GSJ) para 257 the court held that where more
than one accused are charged with the same offence the court may
refuse to discharge
one of them if it is in the interest of justice
to do so.
[36]
For all the aforegoing reasons, I would have allowed the appeal and
set aside the convictions and resultant sentences.
Y T MBATHA
JUDGE
OF APPEAL
Petse
DP (Mokgohloa and Dlodlo JJA concurring):
[37]
I have had the benefit of reading the judgment (the first judgment)
of my colleague Mbatha JA with which Mocumie JA agrees.
The question
to be determined in this appeal is whether the appellant was rightly
convicted of the charges on which he was indicted.
The appeal turns,
in essence, on two aspects. The first is whether the appellant’s
application for his discharge in terms
of s 174 of the CPA should
have been granted. My colleague concludes that the appellant’s
application for discharge was rightly
refused by the trial court.
[38]
With that conclusion, I am in respectful agreement. The following are
my brief reasons for agreeing with my colleague in that
regard.
During his first encounter with Capt. Tlhapi, Mr Thomas Maluleke (the
appellant’s co–accused at the trial)
admitted to having
been at or in the near vicinity of the crime scene. He also made
certain admissions in the course of which he,
amongst others,
seemingly implicated the appellant. Moreover, the line of
cross-examination of the State witnesses adopted by Maluleke’s
counsel sought to downplay or minimise his role in the murder and
shift the blame to the appellant. And further, according to Capt.
Tlhapi’s testimony the appellant himself admitted that the
firearm used in killing the deceased belonged to him and that
he did
not have a licence to possess it. There was also the evidence from
Gumbu (the appellant’s former girlfriend) to the
effect that
during 2007 she accompanied the appellant to Maluleke’s
parental home in order for the appellant to retrieve
his firearm from
Maluleke.
[39]
The second aspect is whether the appellant should have been acquitted
on all counts at the conclusion of the trial. My colleague
answers
this question in the affirmative. With respect, I hold a different
view. The divergence of views between us on this score
is what has
bred this judgment.
[40]
I accept, as my colleague has pointed out in her judgment, that the
fate of this appeal hinges in large measure on the evidence
of
Maluleke who was a single witness in respect of the events leading up
to and including the commission of the murder and its
aftermaths.
Accordingly, it behoves a court in evaluating such evidence to
determine whether, having regard to its shortcomings,
defects or
contradictions, the truth has been told. (See in this regard:
R
v Mokoena
[1956] 3 All SA 208
(A) at
212-213;
S v Sauls and Others
1981 (3) SA 172
(A) at 180 E-F.)
[41]
Moreover, as Maluleke was an accomplice, the trial court was enjoined
to satisfy itself upon an appraisal of all the evidence
– not
just the evidence of the accomplice – that the State proved its
case beyond a reasonable doubt. My colleague
has already dealt with
the state of the law relative to the caution that a court must
exercise when evaluating the evidence of
an accomplice. And, in
particular, that such evidence calls for special scrutiny. I
therefore do not propose to traverse the same
ground in this
judgment. Suffice it to reiterate that ultimately the question
whether there has been proof beyond reasonable doubt
‘depends
upon an appraisal of all the evidence’ and the degree to which
the requisite safeguards have been satisfied.
[42]
As to corroboration, it is necessary to stress that by
‘corroboration’ is meant evidence that shows or tends to
show that an accomplice's account of what took place, that may in its
essential features be truthful, does not falsely implicate
the
accused. (Compare:
R v Brewis
1945 AD 261
at 270;
R v Kristusamy
1945 AD 549
at 558.) The extent of corroboration required will depend
on the nature and quality of the evidence elicited from the
accomplice.
And this will in turn depend on the facts of each case.
Where the testimony of the accomplice is untrustworthy or inherently
improbable
a greater degree of corroboration would be required than
would be in a case where it is cogent. (See:
R
v Swani
1946 NPD 158
at 168.) But the
risk of a wrong conviction will be reduced where the accused turns
out to be a lying witness as has happened in
this case. (See:
R
v Ncanana
1948(4) SA 399(A) at
405-406.)
[43] Whilst still on the
subject of the proper approach to evaluating evidence in a criminal
trial, it is al well to bear in mind
what this Court said in
S v
Shackell
2001 (4) SA 1
(SCA) (para 30):
‘
It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that a mere
preponderance of probabilities is not enough. Equally trite is the
observation that, in view of this standard of proof in a criminal
case, a court does not have to be convinced that every detail of an
accused's version it true. If the accused’s version is
reasonably possibly true in substance the court must decide the
matter on the acceptance of that version. Of course it is permissible
to test the accused’s version against the inherent
probabilities. But it cannot be rejected merely because it is
improbable;
it can only be rejected on the basis of inherent
probabilities if it can be said to be so improbable that it cannot
reasonably
possibly be true.’
[44] Previously, in
S
v van der Meyden
1991 (1) SACR 447
(W) Nugent J had occasion to
say the following (at 449):
‘
[A]
court does not base its conclusion, whether it be to convict or
acquit, on only part of the evidence. The conclusion which is
arrived
at must account for all the evidence. Although the dictum of Van der
Spuy AJ was cited without comment in
S v
Jaffer
1988 (2) SA 84
(C), it is
apparent from the reasoning in that case that the Court did not weigh
the “defence case” in isolation. It
was only by accepting
that the prosecution witness might have been mistaken (see especially
at 89J-90B) that the Court was able
to conclude that the accused’s
evidence might be true.
I am not sure that
elaboration upon a well-established test is necessarily helpful. On
the contrary, it might at times contribute
to confusion by diverting
the focus of the test. 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.’
[45]
Accordingly, all said and done, it is the duty of the trier of fact
to weigh up all the elements of the evidence which point
to 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.
Thereafter, the court must decide whether the balance weighs so
heavily in favour of the State so as to exclude any reasonable doubt
about the accused’s guilt. (See in this regard:
S
v Chabalala
2003 (1) SACR 134
(SCA)
para 15.)
[46] Indeed, our courts
have for more than a century recognised the fact that there is only
one test in a criminal trial, namely
whether the State has proved the
guilt of the accused beyond reasonable doubt. In
S v Sithole
and Others
1999 (1) SACR 585
(W) the test applicable to
criminal trials was explained thus (at 590 g-i):
‘
There
is only one test in a criminal case, and that is whether the evidence
establishes the guilt of the accused beyond reasonable
doubt. The
corollary is that an accused is entitled to be acquitted if there is
a reasonable possibility that an innocent explanation
which he has
proffered might be true. These are not two independent tests, but
rather the statement of one test, viewed from two
perspectives. In
order to convict, there must be no reasonable doubt that the evidence
implicating the accused is true, which can
only be so if there is at
the same time no reasonable possibility that the evidence exculpating
him is not true. The two conclusions
go hand in hand, each one being
the corollary of the other. Thus in order for there to be a
reasonable possibility that an innocent
explanation which has been
proffered by the accused might be true, there must at the same time
be a reasonable possibility that
the evidence which implicates him
might be false or mistaken.’
[47] It is apposite at
this juncture to mention that in denying complicity in the commission
of the offences to which this appeal
relates, the appellant relied on
an alibi. On this score,
R v Biya
1952 (4) SA 514
(A) at
521E-D tells us that:
‘
If
there is evidence of an accused person’s presence at a place
and at a time which makes it impossible for him to have committed
the
crime charged, then if on all the evidence there is a reasonable
possibility that this alibi evidence is true it means that
there is
the same possibility that he has not committed the crime.’
What this Court said in
S
v Liebenberg
2005 (2) SACR 355
(SCA), more than 50 years after
Biya
, is instructive. There, this Court said (para 14):
‘
Once
the trial court accepted that the alibi evidence could not be
rejected as false, it was not entitled to reject it on the basis
that
the prosecution had placed before it strong evidence linking the
appellant to the offences. The acceptance of the prosecution's
evidence could not, by itself alone, be a sufficient basis for
rejecting the alibi evidence. Something more was required. The
evidence must have been,
when considered
in its totality
, of the nature that
proved the alibi evidence to be false.’
(Emphasis
added.)
It
is as well to remember, as this Court made plain in
R
v Hlongwane
1959 (3) SA 337
(A) at
340H, that the alibi ‘does not have to be considered in
isolation’.
[48]
What emerges from the passage quoted from
Liebenberg
in the preceding paragraph is that once it is found that on the face
thereof an alibi defence cannot be rejected as false, something
more
is required to prove that the alibi is false. This then pertinently
raises the question whether in the context of the facts
of this case
the appellant’s alibi can properly and safely be rejected as
false beyond reasonable doubt. To my mind the answer
must be in the
affirmative. I shall elaborate on this aspect later.
[49]
In reaching her conclusions, relative to Maluleke’s perceived
mendacity, my colleague has relied on the evidence of the
witnesses
Tebogo
[5]
and her sister Pinkie
who were at the time of the trial Maluleke’s neighbours. My
colleague has, in addition, found that
the appellant’s alibi
defence finds support in what she says is the corroborative evidence
of his erstwhile girlfriend, Ms
Molebogeng Gumbu. But I do not, with
respect, think that the passages in the record relied upon and her
understanding of their
import and the evidence of the three witnesses
referred to herein, read in proper context, bear out those
conclusions. Thus, it
will be necessary to make reference to crucial
aspect of these witnesses’ evidence to demonstrate why I hold a
different
view.
[50]
In
S
v Mathebula
2010 (1) SACR 55 (SCA)
[6]
this
Court rightly observed that ‘[T]he vulnerability of unsupported
alibi defences is notorious, depending, as it does,
so much upon the
court’s assessment of the truth of the accused’s
testimony’. In this case the odds are heavily
stacked against
the appellant so far as the vulnerability of his alibi defence is
concerned. This is so because his was raised
not only for the first
time at the trial but also after his primary alibi defence –
that he was at work – turned out
to be utterly contrived.
[51] In
S v Thebus and
Another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) the Constitutional Court
recognised that it would not be a legitimate basis for a court to
draw an adverse inference against
an accused for failing to raise his
alibi timeously. The Court nevertheless made plain that a failure to
raise an alibi timeously
is not a neutral factor. It said that such a
failure can legitimately be taken into account in evaluating the
evidence as a whole
to determine the truthfulness of the alibi. The
Court said (paras 64 - 68):
‘
As
pointed out earlier, an arrested person has the right to remain
silent. This, indeed, is part of the warning given to the person
including that if he or she chooses to say anything it may be used in
evidence against him or her. Drawing an inference on credibility
in
these circumstances has the effect of compelling the arrested person
to break his or her silence, contrary to the right to remain
silent
guaranteed by section 35(1)(a) of the Constitution. To this extent,
drawing an adverse inference on credibility limits the
right to
remain silent.
The rule of evidence that
the late disclosure of an alibi affects the weight to be placed on
the evidence supporting the alibi is
one which is well recognised in
our common law. As such, it is a law of general application. However,
like all law, common law
must be consistent with the Constitution.
Where it limits any of the rights guaranteed in the Constitution,
such limitation must
be justifiable under section 36(1). Whether this
rule is justifiable in terms of section 36(1) is a question to which
I now turn.
I have
already alluded to the importance of the right to remain silent. What
is also important is that the accused receives no prior
warning that
his or her failure to disclose an alibi to the police might be used
against him or her in evaluating the alibi defence.
On the contrary,
the accused is warned of his or her right to remain silent and that
anything that he or she says might be used
against him or her. The
absence of a warning that his or her constitutional right to remain
silent might be limited is a relevant
consideration in the
justification analysis. However what weighs heavily with me is the
extent of the limitation.
Firstly,
the late disclosure of an alibi is one of the factors to be taken
into account in evaluating the evidence of the alibi.
Standing alone
it does not justify an inference of guilt. Secondly, it is a factor
which is only taken into consideration in determining
the weight to
be placed on the evidence of the alibi. The absence of a prior
warning is, in my view, a matter which goes to the
weight to be
placed upon the late disclosure of an alibi. Where a prior warning
that the late disclosure of an alibi may be taken
into consideration
is given, this may well justify greater weight being placed on the
alibi than would be the case where there
was no prior warning. In all
the circumstances, and in particular, having regard to the limited
use to which the late disclosure
of the alibi is put, I am satisfied
that the rule is justifiable under section 36(1).
The
failure to disclose an alibi timeously is therefore not a neutral
factor. It may have consequences and can legitimately be taken
into
account in evaluating the evidence as a whole. In deciding what, if
any, those consequences are, it is relevant to have regard
to the
evidence of the accused, taken together with any explanation offered
by her or him for failing to disclose the alibi timeously
within the
factual context of the evidence as a whole.’
[52] It continued in
paras 90 – 97:
‘
One
further point needs to be made. It should be clear from what we have
said, that we do not see that a valid distinction can be
drawn in
this context between adverse inferences going to guilt, and adverse
inferences going to credit. There is of course a conceptual
difference between inferences going to credit and inferences going to
guilt. But in the context of an alibi, the practical effect
of the
adverse inference to be drawn for the purposes of credit, namely,
that the alibi evidence is not to be believed, will often
be no
different to the effect of the inference to be drawn with respect to
guilt, namely that the late tender of the alibi suggests
that it is
manufactured and that the accused is guilty. We disagree therefore
with the distinction drawn by Moseneke J between
an adverse inference
to credit on the one hand and an adverse inference to guilt. Whether
an adverse inference is drawn going to
guilt or credit, in our view,
the accused has been treated unfairly in the light of the warning
given.
Moseneke
J comes to the related conclusion that it is permissible for an
accused person to be cross-examined “on why she or
he opted to
remain silent on an alibi or indeed any other defence . . .”.
We do not agree. In the first place, we are of
the opinion that no
accused person should have to account for the exercise of a right
entrenched in the Constitution. This is especially
so where that
account may be used against the accused. Secondly, it would be unfair
to allow such cross-examination in the light
of the accused person
having been informed of the right to silence without at the same time
being informed that she or he might
be requested to account for the
positive exercise of the right at the trial. We must emphasise that
we are concerned only with
cross-examination relating to the
pre-trial silence of the accused. Nothing we have said should be
understood as precluding other
lines of cross-examination designed to
test the veracity of the alibi.
The
foregoing should make it plain that the constitutional position would
be different were there to be a law of general application
permitting
the drawing of an adverse inference in circumstances where the
accused has been properly informed of the consequences
of a failure
to raise an alibi timeously. No such rule presently exists at common
law in South Africa. In our view, such a rule
if properly tailored
and, in particular, if accompanied by an appropriate revision to the
warning issued to arrested persons would
still limit the right to
silence, but would pass constitutional muster under section 36 of the
Constitution. In this case, were
the first appellant to have been
duly warned that his failure to disclose an alibi timeously could
result in an adverse inference
being drawn, the common law could have
been developed to permit the drawing of an adverse inference by the
Supreme Court of Appeal
and such development would have been a
justifiable limitation of his right to silence and to a fair trial.
It should be noted that
a rule requiring timeous disclosure of an
alibi defence has existed at common law in Canada for many years and
according to a majority
of the Supreme Court of Canada it “has
been adapted to conform to Charter norms.” Limits on the right
to silence have
also recently been adopted in the United Kingdom. The
European Court of Human Rights has also held that an adverse
inference from
silence is not necessarily incompatible with article 6
of the European Convention on Human Rights. It appears that rules of
this
nature are proposed by the SA Law Reform Commission.
We
conclude, however, that the right to silence was breached in this
case, because an adverse inference was drawn from the failure
of the
first appellant to disclose an alibi after being informed of his
right to remain silent. Nevertheless we are persuaded that
the appeal
of the first appellant should be dismissed for the record establishes
his guilt beyond a reasonable doubt without reliance
upon any adverse
inference from his silence. The High Court found Kiel’s
evidence cogent and persuasive, while rejecting
that of the two alibi
witnesses as false. There is no basis for rejecting these findings.
Moreover, the first appellant, when initially
questioned by the
police, said that his family had been at Hanover Park at the time of
the offence, which is inconsistent with
the alibi he subsequently
raised. At best for the accused, his statement that “the family
was at Hanover Park” is ambiguous
and evasive. It is not
consistent with the alibi tendered later to the effect the he was
with his second wife at Parkwood Estate
which is nowhere near Hanover
Park. In the light of the rejection of the evidence of the two
defence witnesses and the prior inconsistent
statement made by the
first appellant, the alibi evidence does not in the context of all
the evidence in the case (particularly
the strong evidence of Kiel)
raise a reasonable doubt as to the innocence of the first appellant.
I have
read the judgment of Moseneke J (the main judgment) and the
concurring judgment of Goldstone J and O’Regan J (the
concurrence). I agree with the conclusion in both judgments that the
appeal must fail. Like the concurrence I agree with the reasoning
and
conclusion in the main judgment concerned with common purpose. I
cannot however fully agree with the reasoning or conclusion
in either
judgment on the right to silence. Hence this separate concurrence.
In the
process of arriving at the conclusion that the alibi had to be
rejected as a fabrication the majority judgment of the Supreme
Court
of Appeal (SCA) on the alibi defence delivered by Lewis AJA relied on
the first appellant’s failure to disclose his
alibi to the
police or to the prosecution. The first appellant contended that this
approach infringed his right to remain silent
conferred by section
35(1)(a) of the Constitution. The main judgment and the concurrence
hold, each on a different basis, that
the reasoning of the majority
in the SCA did infringe the first appellant’s right to silence
but conclude that the first
appellant’s conviction was
nevertheless justified.
Briefly
stated the differences between the two judgments are these. The
concurrence takes the view that any cross-examination of
an accused
person on the reasons for the failure to disclose an alibi to the
police before the trial, and any reliance on the accused’s
silence in the process of judicial reasoning that results in the
rejection of that alibi is a breach of the right to silence. The
main
judgment holds that: (a) it is not an infringement of the right to
silence to cross examine an accused person concerning the
reason why
an alibi was not disclosed provided that the cross-examination is
fair in the circumstances; (b) it is a justifiable
limitation of the
right to silence for a judicial officer to take into account the
responses thus obtained in conjunction with
the failure to disclose
an alibi as factors in the process of making an inference as to the
credibility of the accused; (c) it
is an infringement of the right to
silence to infer the guilt of the accused from the failure to
disclose an alibi and (d) the
majority in the SCA wrongly did this.
This judgment favours an
approach that:
(a) The right to silence
properly interpreted in its context has an impact on the way in which
a criminal trial should be conducted.
(b) The appropriate
protection of the right does not require the cross-examination of an
accused person about the reasons for the
failure to disclose an alibi
to be absolutely protected. Nor does it prohibit a judicial officer
from drawing any legitimate inference
from the evidence revealed by
the cross-examination, the silence of the accused and all the
relevant surrounding circumstances.
(c) The over-arching and
abiding obligation of a judicial officer in a criminal trial is to
ensure a fair trial within the meaning
of section 35(3).
(d) It is this obligation
that governs the way in which a criminal trial is conducted; dictates
answers to complex questions concerning
the circumstances and the
extent to which cross-examination on the reasons for silence are
permissible; and settles whether any
inference may be drawn from the
silence of the accused and the facts and circumstances related to it
as revealed in the trial.
(e) The need to ensure a
fair criminal trial is key to determining whether a right has been
infringed. The right is infringed only
if it is implicated in a way
that renders the trial unfair.
(f) Cross-examination of
witnesses concerning the reason why an alibi was not disclosed
infringes the right to silence only if it
renders the trial unfair.
(g) The responses thus
obtained may be taken into account by a judicial officer in
conjunction with the failure to disclose an alibi
in the process of
making an inference provided that the way in which the inference is
made and the drawing of the inference itself
does not render the
trial unfair.
(h) Drawing an inference
as to guilt or credibility solely from the silence of the accused
would render a trial unfair.
(i)
The inference drawn by the SCA was entirely fair.’
[53]
It bears mentioning that Capt. Tlhapi who was the officer charged
with the investigation in this case expressed surprise when
it was
put to him under cross-examination that the appellant could not have
been party to the crimes because he was at work. He
said that he
would ‘be surprised to hear that, because [during] the
interview that [he] had with [the appellant], [the appellant]
had
ample chance to inform [Tlhapi] about that and [he] (ie Tlhapi) would
have followed up the alibi, if he could have informed
[Tlhapi]
immediately’.
[54]
Coming to the evidence of Tebogo, there is nothing remarkable about
this witness’ evidence or adverse to Maluleke. In
broad terms,
and in its essential features, it ties up with the overall tenor of
Maluleke’s evidence. Any differences or
inconsistencies between
their respective versions are not material or indicative of the fact
that Maluleke was untruthful. On the
core aspects, their respective
versions are to the same effect. Nowhere in his evidence did Tebogo
say that Maluleke ‘sought
accommodation from his place because
at Maluleke’s home they were not opening for him due to his
late arrival’ as the
first judgment states.
[7]
[55]
With respect to the evidence of Tebogo’s sister (Ms Pinkie
Mngubeni), she confirmed one significant and material aspect
in
Maluleke’s evidence. She testified that whilst inside the
house, in the dead of night, she heard a gunshot that rang out
outside. She went out to investigate after hearing human voices
immediately after the gunshot which was when she met her brother,
Tebogo outside. She then enquired of Tebogo if he had heard the
gunshot. The latter answered in the negative. According to Pinkie,
Tebogo was at that stage engaged in a ‘discussion’ with
Maluleke.
[56]
It is timely at this juncture to say something about the witness,
Gumbu. Her evidence was, in broad terms, to the effect that
whenever
she was ‘around’ she and the appellant would spend the
night together. Under cross-examination she said that
her love
relationship with the appellant started in 2006. At that time they
were both employed at Morula Sun although as at July
2006 they were
not on the same shift. When it was put to her that she ‘would
not even remember whether on 21 August 2006,
[she was] working the
same shift or different shift[s]’ with the appellant her
response was that she could not remember.
Neither could she tell as
to when they were allowed to work together during the same shift.
When counsel for the appellant put
to her that she was ‘adamant
that [she] never slept at [Maluleke’s] place’ her answer
was that she was not sure.
Thus, Gumbu’s evidence was of no
real value to both the State and the appellant. Nowhere in the record
is there evidence
by Gumbu that throughout the night of 31 August
2006 she was with the appellant in the room which they shared. It is
therefore
a bridge too far to cross to then say, as my colleague
does,
[8]
that Gumbu corroborated
– in the sense explained above – the appellant’s
alibi that they spent the night of 31
August 2006 together. Far from
it.
[57]
The trial court found that the appellant lied in relation to the crux
of his alibi. Accordingly, this appeal falls to be considered
on that
footing.
[58]
The crucial question must then be: where does all of this leave the
State’s case? It is not in dispute that the offences
upon which
the appellant and his confederate were indicted were committed on 31
August 2006. Thus, when the appellant testified
in his defence he was
testifying as to events which took place some five years before the
trial commenced. The same naturally applies
to the State witnesses.
[59]
I readily accept, as my colleague does, that in those circumstances a
court ought to make allowances for human memory lapses.
But in the
context of the facts of this case, I do not believe that this is the
type of situation for which allowances must and
can properly be made
for the long passage of time. This is not a case where one could
conceivably say that the appellant suffered
from memory lapses going
to the details of his alibi. To my mind, this is rather a case where
the appellant must have thought that
he had an unassailable defence
when he confidently asserted that he was at work at the time of the
commission of the offences.
When this defence, upon which he pinned
his faith, was debunked, he was quick to seek refuge in another alibi
defence, namely that
he was with his girlfriend at the time.
[60]
This is quite telling. The appellant’s conduct in this regard
reveals the extent to which he was prepared to perjure
himself in
order to escape from the clutches of justice. And the fact that this
defence was raised for the first time at the trial
is not a factor
that redounds to the appellant’s benefit. This is particularly
so given that upon his arrest the appellant
admitted to Capt. Tlhapi
that the firearm used in the murder belonged to him. However, the
question as to how it came about that
his firearm was used in the
murder, given the appellant’s denial of complicity, remains
unexplained. Despite the fact that
the appellant testified in his
defence he did not seize upon this opportunity to do so. Instead, he
persisted in his false denials.
Therefore, there can be no denying
that the cumulative effect of these factors cast a shadow on the
truthfulness of his alibi.
[61]
To underscore the appellant’s dismal performance in the witness
stand, the following bears mentioning. During his cross-examination
by counsel for the State, the appellant was asked as to where he was
on 31 August 2006 at around 22h00. His response was that
he was
at work at Morula Sun, having reported for duty at 16h00 until 02h00
the next morning. The appellant obstinately maintained
this stance
throughout until towards the tail end of his cross-examination when
he was constrained to accept, upon being confronted
with irrefutable
evidence that he had signed off from work at 18h05, that his initial
alibi defence did not avail him. With his
first alibi defence having
been jettisoned, the appellant wasted no time to conjure up another
alibi defence, namely that he was
with Gumbu the whole evening of 31
August 2006. To bolster this claim, he further asserted that the next
day they reported for
duty together.
[62]
It is a fact that Maluleke’s evidence is not entirely without
blemish. This is, however, hardly surprising given that
we are here
dealing with someone who is an accomplice. Accordingly, it should be
remembered, as this Court emphasised in
S
v Francis
1991 (1) SACR 198
(A) at
205c-e, that it is not expected that the evidence of an accomplice
should be wholly consistent and wholly reliable, or even
wholly
truthful. It is sufficient that in its essential features it has a
ring of truth.
[63] Moreover, what this
Court said about accomplices more than seven decades ago in
R v
Kristusamy
1945 (A) 549 at 556 is instructive. It said the
following:
‘
[A]fter
all, one cannot expect a witness of that class to be wholly
consistent and wholly reliable, or even wholly truthful, in
all that
he says. If one had to wait for an accomplice who turned out to be a
witness of that kind – or indeed anything like
it – one
would, I think, have to wait for a very long time, members of the
criminal classes do not usually come nearly up
to so high a
standard.’
This
Court nonetheless stressed that it was still ‘necessary that
the Court should be satisfied beyond reasonable doubt that
in its
essential features the story which he tells is a true one’.
[64]
Thus, although the evidence of Maluleke has been criticised in some
respects by the appellant the fact remains that it cannot
be validly
challenged as totally devoid of truth. I therefore, respectfully find
myself unable to share my colleague’s characterisation
of
Maluleke’s evidence as not only utterly devoid of credence but
also nonsensical. Nor, as already indicated, does a fair
reading of
the record manifest any material conflict or inconsistency between
Maluleke’s evidence and that of the witness
Tebogo.
[65]
It is as well to remember that contradictions in themselves, if they
be such, do not inevitably lead to the rejection of a
witness’
evidence. As Nicholas J observed in
S v
Oosthuizen
1982 (3) SA 571
(T) at
576B-C, they may simply be indicative of an error. At 576G-H of the
same judgment, the learned Judge stated that ‘it
is not every
error made by a witness that affects their credibility; in each case
the trier of fact has to make an evaluation,
taking into account such
factors as the nature of the contradictions, their number and
importance, and their bearing on other parts
of the witness’
evidence’. In these circumstances, can one justifiably
criticise Maluleke for having said that in the
year 2007 the
appellant arrived at his shack looking for his firearm simply because
Warrant Officer Seforolwane had in 2006 already
recovered the
firearm? I think not. Viewed in context and understood from his
perspective it can only mean that the appellant demanded
his firearm
unaware that at that stage it was not available as the police had, in
the interim, taken possession of it. Indeed,
that the appellant had
come to Maluleke’s shack and demanded a firearm from the
latter, turning the bed upside down was confirmed
by Ms Dimakatso
Maria Mokoka who testified at the instance of Maluleke. According to
this witness it was on this occasion that
Maluleke informed the
appellant that the firearm was ‘seized by the police’.
Even Gumbu too, testified to the fact
that during 2007 she and the
appellant visited Maluleke in the latter’s room.
[66]
My colleague says that on the evidence it is apparent that the
appellant had faith in his initial alibi defence. Hence he instructed
his counsel to procure his erstwhile employer’s records,
confident that such records would bear out his defence. It is then
said that it was therefore understandable that when this turned out
not to be the case the appellant fell back on his second alibi
defence. The implication of this statement is that whenever an
accused raises a defence of an alibi – that turns out to be
utterly false or unfounded – it is open to that self-same
accused to raise an alternative alibi defence, which is what happened
in this case. Such a proposition, in my view, would have far-reaching
consequences for the administration of justice. That the
appellant
was able to instantaneously conjure up another alibi to fall back on
upon his realisation that he was being pushed into
a tight corner
from which he would find it difficult to extricate himself,
demonstrates without a shadow of doubt his quick-wittedness
and
mastery in improvisation. Thus, I regret to say that my colleague is
overly charitable to the appellant.
[67] My conclusion
therefore is that the appellant’s alibi defence was rightly
rejected by the trial court as being false
beyond reasonable doubt.
In the light of the evidence led at the trial, viewed in its
totality, I am satisfied that the appellant’s
conviction is
supportable. In sum, all of the pieces of the evidence from the
various witnesses, when sewn together, create an
impregnable mosaic
of proof against the appellant. There is no appeal against the
sentences. In the result the following order
is made:
The appeal is dismissed.
X M PETSE
DEPUTY
PRESIDENT
APPEARANCES
For appellant: R J Nkahle
Instructed by: TN Ramollo
Attorneys, Germiston
Masina
Attorneys, Bloemfontein
For respondent: M D
Moeketsi
Instructed
by: Director of Public Prosecutions, Mmabatho
Director of Public
Prosecutions, Bloemfontein
[1]
S v V
2000 (1) SACR 453
(SCA) at 455B.
[2]
[1956]
3 All SA 208
(A) at 212-213.
[3]
S
v Sauls and Others
[1981] 4 All SA 182
(AD);
1981 (3) SA 172
(A) at 180E-F.
[4]
E
Du Toit et al
Commentary
on the
Criminal Procedure Act
(2020
) at RS 64.
See
also
S
v Manekwane
1996 (2) SACR 262.
[5]
I have referred to these witnesses by their first names because they
share a common surname. No disrespect is intended.
[6]
Para
11.
[7]
Para
18 of the first judgment.
[8]
First
judgment para 11.