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[2024] ZAFSHC 393
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S v Makhubo (37/2024) [2024] ZAFSHC 393 (18 November 2024)
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
(FREE STATE DIVISION,
BLOEMFONTEIN)
CASE NO:37/2024
DPP REF NO:42/2024
In the matter between:
THE STATE
V
TANKI JAMES MAKHUBO
Neutral Citation:
Coram:
Mahlatsi AJ
Heard:
15 November 2024
Delivered:
18 November 2024
Summary:
Application
for discharge in terms of
s 174
of the
Criminal Procedure Act 51 of
1977
.
ORDER
1. The application
in terms of
section 174
of Act 51of 1977on count 1 and 2 stands to be
denied.
2. The application
in terms of section 174 of Act 51of 1977 on count 3 is granted.
JUDGMENT
Mahlatsi AJ
[1]
The accused is charged with three counts as follows:
Count one: MURDER READ
WITH THE PROVISIONS OF
SECTION 51(1)
OF THE
CRIMINAL LAW AMENDMENT
ACT 105 OF 1997
, AS AMENDED (the Act) ;
Count two: ATTEMPTED
MURDER;
Count three: ATTEMNPTED
MURDER.
[2]
The accused pleaded not guilty to count one to count three. Advocate
Dlamini confirmed appearance for
the accused and that the plea is in
accordance with his instructions. The accused elected to remain
silent and not disclose the
basis of his defence.
[3]
Advocate Strauss handed in the notice in terms of s 212B of the
Criminal Procedure Act 51 of 1997 (the
Act) as exhibit ‘A’,
which sets out the facts which are not in dispute in these
proceedings. He also handed in the
accused’s reply in terms of
s 212B of the Act as exhibit ‘B’.
[4]
Advocate Dlamini indicated that he has no objection to the handing in
of exhibit ‘A’ and
‘B’ as per his instruction
from the Accused. Subsequently, the court accepted exhibit ‘A’
and ‘B’
into record.
[5]
From the contents of exhibits ‘A’ and ‘B’, it
is common cause that the deceased
is Raisa Chris Raisa who met his
demise on the 3 September 2023. Dr Mokhatla performed a post-mortem
on the body of the deceased
on 4 September 2023, recorded his
findings on form PDR 290/2023 and indicated the cause of death as
follows: ‘Gunshot wound
to the chest’. The correctness
and findings of the report are not in dispute. Furthermore, the
deceased did not sustain any
further injuries from the scene until
the post-mortem was performed.
[6]
Ms Matla, the complainant in the second count, was examined by Dr
Sello on the 3 September 2023
and he compiled a report based on a
medico-legal examination (J88 form). The correctness and findings of
the report are not in
dispute.
[7]
On 3 September 2023, Sgt Mkwanazi from the Local Criminal Record
Centre attended the crime scene.
He took photographs of the crime
scene as well as of the deceased at the hospital whereafter he
compiled a photo album and a key
to the photographs consisting of
photographs 1-26. The contents of the photographs are not in dispute.
[8]
Of further relevance is that the accused was the driver of the white
Ford Ranger with registration
numbers KD 3[…], which he
abandoned, and a holder of a firearm licence.
[9]
What is at issue in this matter is the determining question: who
fired shots which resulted in
the two people seriously injured and
one deceased?
[10]
After hearing the witnesses by the State, an application for
discharge was launched by the defence in terms
of s 174 of the Act.
The State opposed the application on counts 1 and 2 and conceded to
count 3.
[11]
The issue that requires determination at the end of the State’s
case is whether any evidence exists
on which the court might convict
the accused in relation to the remaining counts, such being murder on
count 1 and attempted murder
on count 2. In addressing this issue,
the underlying principles governing considerations to be given by the
court will be dealt
with and applied to the facts of this case.
[12]
The application for discharge at the end of the prosecution’s
case is regulated by s 174 of the Act
which provides as follows:
‘
If, at the close
of the case for the prosecution at any trial, the court is of the
opinion that there is no evidence that the accused
committed the
offence referred to in the charge or any offence of which he may be
convicted on the charge, it may return a verdict
of not guilty.’
[13] It
is without doubt that the court is seized with the discretion to
apply itself on the evidenced adduced
on behalf of the prosecution to
assess if the evidence is sufficient to support conviction of the
accused. This is a fundamental
imperative of our criminal justice
system which is now fully recognised by our new constitutional
order.
[1]
[14]
The approach to be adopted in this application was settled in our
law. In
S
v Lubaxa
,
[2]
the court held as follows:
‘
[10] Section 174
of the Act repeats in all material respects the terms of its
predecessor in 1917 and 1955 Criminal Codes. It permits
a trial court
to return a plea of not guilty at the close of the case for the
prosecution if the court is of the opinion that there
is no evidence
( meaning evidence upon which a reasonable person might convict
: S v Khanyapa
1979 (1) SA 894
(A) at 838F-G that the accused
committed the offence with which he is charged, or an offence which
is a competent verdict on that
charge.’
In
S
v Phuvharatha and Others
[3]
the court held as follows:
‘
The presumption in
favour of innocence, the fact that the
onus
rest on the State, as well as the dictates of justice in my view will
normally require an exercise of discretion under section
174 in
favour of an accused person where the State case is virtually and
basically non-existent. Strengthening of a non-existent
State case is
physical impossibility.’
[4]
[15]
The credibility of the prosecution’s witnesses at the stage of
s 174 application plays a limited role.
However, if the relevant
evidence adduced at the end of the State’s case is of such poor
quality that no reasonable person
could possibly accept it, the court
can ignore such evidence.
[5]
[16] In
S v
Dewani
[6]
the court said the following in returning a verdict of not guilty on
an application in terms of section 174 of the Act:
‘
[15] To therefore
summarise the legal position regarding applications in terms of
section 174:
(a)
An accused person is entitled to be discharged at the
close of the
case for the prosecution if there is no possibility of a conviction
other than if he enters the witness box and incriminate
himself;
(b)
In deciding whether an accused person is entitled to
be discharged at
the close of the State’s case, the court may consider the
credibility of the State witnesses, even if only
to a limited extent;
(c)
Where the evidence of the State witnesses implicating
the accused is
of such a poor quality that it cannot safely be relied upon, and
there is accordingly no credible evidence on record
upon which a
court, acting carefully may convict, an application for discharge
should be granted.’
[17] I
now deal with the evidence to prove each of the counts and whether
the evidence is of such a nature and
quality that the application in
terms of s 174 of the Act should be refused.
[18] I
intend in dealing first with count 3, that of attempted murder. On
that charge, the complainant testified
that he was in the company of
his friends on their way from Rise and Shine Pub in Phuthaditjhaba.
When they were about to leave,
they heard gunshots and, in a panicked
manner, started running away. Amidst this confusion, the complainant
got hit and fell. He
was shot in his back, just above the buttocks.
His friends lifted him up and carried him to Manapo Hospital for
treatment. He was
discharged few hours from the hospital. He does not
know who shot at him, neither does he know the accused; he saw him
for the
first time in court.
[19] As
I have stated earlier (in para 10
supra
), the State conceded
that there was insufficient evidence to oppose the application on
count 3. The quality of the State witness’
evidence on who shot
the complainant on count 3 is not
prima facie
proof that the
accused is the one who shot him. There is no possibility that the
accused may be convicted on the State witness’
evidence, except
if the accused implicates himself. It would be unconstitutional to
put the accused to his defence in light of
the insufficient evidence
against him. I do not have any other option than to grant the
application in respect of count 3.
[20]
The nature of the evidence against the accused on counts 1 and 2 is
completely different. As a point of departure,
his own version places
him at the scene. For example, the witnesses for the State were told
that the accused was involved in a
fight with the deceased and
others. In addition, he had a firearm with him during the
confrontation.
[21] I
am mindful of the fact that what has been said from the plea
explanation and in cross-examination is not
per se
evidence.
It must be given substance under oath and be tested under
cross-examination. Furthermore, the evidence
on
counts 1 and 2 overlaps in that the complainant on count 2 testified
about what befell her and the allegations on count 1.
[22] Ms
Matla testified that on the 3 September 2023, she was fetched by the
deceased from the car wash. Together,
they made their way to Rise and
Shine Pub in Phuthaditjhaba to collect the deceased’s friend,
Mr Mono. Mr Mono is the third
State witness.
[23]
Both Ms Matla and Mr Mono testified that the deceased was the driver
of his vehicle. Ms Matla was seated
in the front seat and Mr Mono
seated in the back seat. When they were about to drive away from Rise
and Shine Pub, a Ford Ranger
driven by the accused, blocked the road.
The deceased went to speak with the accused, in order to give them
the right of way. After
some time, the deceased returned to his
vehicle, but the accused rammed the Ford Ranger in to the vehicle
driven by the deceased,
damaging it on the right side. This prompted
the deceased to confront the accused which resulted in the accused
shooting the deceased.
[24]
Both Ms Matla and Mr Mono, at different occasions, went out of the
deceased vehicle to assist the deceased.
Mr Mono was the first to go
out, followed by Ms Matla but she sought shelter after realising that
she was also being attacked by
the accused. She turned away, she was
attacked from behind and sustained injuries as noted in the J88.
[25]
Furthermore, I am also mindful of the circumstances of the case and
the possible tension the witnesses were
and are under. Both the State
witnesses were steadfast in their denial of the accused’s
version. The accused’s version
still lacks detail and is vague
and general.
[26]
Having noted the authorities cited above, the principles involved in
this application have been elucidated.
Considering the nature of the
evidence of the two witnesses mentioned above together with the other
State witnesses, I conclude
that there is evidence upon which a
reasonable person acting carefully might convict.
Order:
[27] In
the result, the following order is made:
1
The application in terms of s 174 of Act 51 of 1977 on counts 1 and 2
stands to be denied.
2
The application in terms of s 174 of Act 51 of 1977 on count 3 is
granted.
MAHLATSI AJ
Appearances:
For
the State:
Adv.
M Strauss
Instructed
by:
DPP
– Bloemfontein
For
the Accused:
Adv.
F Dlamini
Instructed
by:
Wesi
Attorneys
Bloemfontein
[1]
S v
Kruger-De Lange
[2021] ZAGPPHC 545 para 5.
[2]
S v
Lubaxa
[2001]
ZASCA 100; [2000] 2 All SA 107 (A).
[3]
S v
Phuravhatha and Others
1992 (2) SACR 544 (V).
[4]
Ibid at 550A-B.
[5]
S
v Mpetha and Others
1983 (4) SA 262
(C) at 265D-F.
[6]
S v
Dewani
[2014] ZAWCHC 188.