S v Rabotshankga (564/94) [1997] ZASCA 22 (25 March 1997)

85 Reportability

Criminal Law

Brief Summary

Criminal Law — Murder — Conviction based on circumstantial evidence — Appellant convicted of murder, assault, theft, and rape — Appeal against murder conviction only — Evidence from eyewitness Ramohlolo corroborated by forensic findings — Appellant's version rejected as improbable — Court finds sufficient evidence to uphold conviction.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter was a criminal appeal before the Supreme Court of Appeal arising from a conviction for murder and the imposition of the death sentence in the former Witwatersrand Local Division. The appeal was before the Supreme Court of Appeal in terms of section 316A(1) of the Criminal Procedure Act 51 of 1977, which provided for an appeal in capital matters.

The appellant, Gilbert Rabotshankga, had been convicted in the trial court of murder and sentenced to death. In addition, he had been convicted of assault, theft, and rape, receiving sentences of imprisonment of six months, one month, and ten years respectively. The appeal, however, concerned only the conviction and sentence on the murder count; leave to appeal was not sought in respect of the other convictions.

The general subject-matter of the dispute was whether the trial court correctly accepted the evidence of a key State witness, Ms Miriam Ramohlolo, rejected the appellant’s version as false, and consequently convicted the appellant of murder; and, further, what the appropriate approach to sentence should be given the subsequent constitutional invalidation of the death penalty.

2. Material Facts

The deceased was employed as a domestic worker at a house in Rembrandt Park, Johannesburg. On 26 March 1993, her employers left on holiday, leaving her in charge of the house. They were due to return on 4 April 1993.

On the afternoon of 2 April 1993 at about 16h45, one of the employers’ sons returned home and found the front door open. He discovered the deceased lying naked on the floor of the “playroom,” with her head battered and covered in blood, and she was clearly dead. A post-mortem established that the cause of death was fractures of the skull with intracranial haemorrhage, including three fractures, one described as “massive.” Medical examination also revealed spermatozoa in the deceased’s vagina, and blood in the vagina (probably linked to menstruation).

In the playroom, sections of a broken golf club (a putter) were found, bearing blood, and another golf club with a bent shaft was found near the front door. These clubs had come from a golf bag kept upstairs. The injuries were consistent with blows inflicted with a golf club. Further physical findings included a smashed clay carafe on the bed, the deceased’s blood-soaked dress on the bed, blood on the duvet and wall, and the deceased’s underwear found in another bedroom elsewhere in the house.

Two hairs matching the appellant’s head hair were found on the duvet on the bed in the playroom. The expert evidence (not disputed) expressed the likelihood of identical hair as one in 4 500 (0.02%). Hairs from the deceased (pubic and head hair) were also found on the duvet.

The appellant was arrested after Ms Ramohlolo reported events to the police on 3 April 1993. It was common cause that Ms Ramohlolo and the appellant had been in a love relationship that ended approximately two weeks before the incident, although they disputed the reason for the break-up.

The central factual dispute at trial concerned mutually destructive versions from Ms Ramohlolo and the appellant as to who killed the deceased, with each accusing the other. The trial court accepted Ms Ramohlolo’s evidence and rejected the appellant’s account.

On Ms Ramohlolo’s version, she went to the deceased’s workplace at about 14h00 on 2 April 1993. After the gate opened, she entered and saw the front door open, where she was grabbed from behind by the appellant holding a knife to her neck. She was taken to the playroom where the deceased was on the bed, naked and bloodied. The appellant demanded that the deceased explain why he had been “hitting” her; the deceased responded that the appellant wanted the employers’ firearms, but she did not know where they were (they were in fact at the bank). Ms Ramohlolo testified that the appellant then assaulted the deceased by striking her on the head with a golf club, which broke, and compelled Ms Ramohlolo to fetch another club. She described being struck on the back upstairs with a golf club when she attempted to escape through a window. She further testified that the deceased attempted to crawl away, but the appellant dragged her back and continued to beat her. Ms Ramohlolo escaped through the gate, was pursued, and was threatened by the appellant that she would be killed if she went to the police, and that he would allege they had killed the deceased together.

On the appellant’s version, he went to Ms Ramohlolo’s workplace to recover money he claimed she owed him, learned she was visiting the deceased, and went to the house. He alleged that the deceased’s boyfriend invited him in, then produced a firearm and forced him upstairs, ordering him to jump out of a window. He claimed a fight ensued, during which Ms Ramohlolo handed him a golf club, after which the boyfriend fled. The appellant then claimed he found Ms Ramohlolo in the playroom hitting the deceased with a golf club, that he intervened by breaking the club and pulling Ms Ramohlolo off the deceased, and that he then left with Ms Ramohlolo. He asserted he later returned to the house but received no response at the gate.

The court treated the credibility choice between these versions, and the objective probabilities supported by corroborative evidence (including the scene evidence and hair evidence), as material to the outcome.

3. Legal Issues

The appeal raised two central questions.

The first concerned the correctness of the murder conviction, which depended on whether the trial court erred in its assessment of credibility and probabilities by accepting Ms Ramohlolo’s evidence and rejecting the appellant’s version. This was primarily a dispute of fact, involving the application of well-established evaluative techniques for resolving mutually destructive versions through credibility findings and inherent probabilities.

The second issue concerned sentence, specifically whether the death sentence imposed after the commencement of the interim Constitution remained competent given the subsequent Constitutional Court decision invalidating capital punishment. This was a question of law and the legal consequences of constitutional invalidity for a sentence already imposed.

4. Court’s Reasoning

On conviction, the Supreme Court of Appeal approached the matter on the basis that the trial court had made a clear choice between two mutually destructive versions. It noted the trial court’s assessment that Ms Ramohlolo was an impressive witness and found nothing in the record indicating that this assessment was unjustified. The appellate court treated the criticisms of imperfections in her evidence as inconsequential and not undermining her credibility regarding the events of 2 April 1993.

In contrast, the appellate court endorsed the trial court’s conclusion that the appellant’s version was “riddled with improbabilities.” The reasoning proceeded by testing the appellant’s narrative against objective indicators and ordinary probabilities drawn from the proved facts.

A key element was the inconsistency between the appellant’s claimed limited involvement in the playroom and the objective evidence. The court relied on the corroboration that the deceased was found naked shortly after the event, making the appellant’s professed failure to notice her nakedness—despite his claim that he pulled Ms Ramohlolo off the deceased—highly improbable. Similarly, the court reasoned that the appellant’s claim not to have observed injuries on the deceased was implausible given the horrendous head and facial injuries reflected in photographs and the proximity he alleged.

The court further found the appellant’s attempted explanation for the deceased being totally naked (as arising from a quarrel between friends over clothing and money) improbable, especially because the clothing was not removed and taken away. The location of the deceased’s underwear elsewhere in the house also sat poorly with the appellant’s explanation.

The hair evidence was treated as materially undermining the appellant’s assertion that he barely entered the playroom. Two hairs matching the appellant’s head hair were found on the duvet on the bed in the playroom, and the court regarded his suggestion that the hairs could somehow have arrived there as no real explanation.

The court also evaluated the overall improbability of the appellant’s story of a bizarre confrontation involving the deceased’s boyfriend drawing a firearm, ordering the appellant to jump from an upstairs window, and then fleeing and leaving the deceased behind. This aspect was expressly characterised as implausible and unsupported by a coherent motive or explanation consistent with ordinary human conduct.

Having weighed these improbabilities, the appellate court concluded that the trial court had been justified in rejecting the appellant’s version and accepting Ms Ramohlolo’s, and that there was accordingly no merit in the appeal against the conviction for murder.

On sentence, the court noted that the trial commenced after the interim Constitution came into operation. After the appellant had been sentenced to death, the Constitutional Court in S v Makwanyane and Another declared the death penalty inconsistent with the Constitution and invalid. The Supreme Court of Appeal reasoned that because the death sentence imposed by the trial court was therefore invalid, it could not stand and had to be replaced by a competent sentence. The court considered the appropriate procedural course to be remittal to the trial court for the imposition of a competent sentence, rather than substituting sentence itself on appeal.

5. Outcome and Relief

The appeal against the conviction on the count of murder was dismissed.

The appeal against the sentence of death was upheld, and the death sentence was set aside.

The matter was remitted to the trial court for the imposition of a competent sentence on the murder count. The judgment did not reflect a distinct costs order.

Cases Cited

S v Makwanyane and Another [1995] ZACC 3; 1995 (2) SACR 1 (CC)

Legislation Cited

Criminal Procedure Act 51 of 1977, section 316A(1)

Constitution of the Republic of South Africa Act 200 of 1993

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Supreme Court of Appeal held that the trial court had not erred in accepting Ms Ramohlolo’s evidence and rejecting the appellant’s version as improbable, with the result that the conviction for murder could not be interfered with on appeal. The court further held that the death sentence imposed was invalid in light of the Constitutional Court’s decision declaring capital punishment unconstitutional, and that the proper remedy was to set aside the death sentence and remit the matter to the trial court for the imposition of a competent sentence.

LEGAL PRINCIPLES

A criminal appeal on conviction turning on mutually destructive versions requires scrutiny of the trial court’s credibility findings and the inherent probabilities, and an appellate court will not interfere where the trial court’s acceptance of one version over another is justified by the record and supported by objective indicia and improbabilities in the rejected account.

Where a sentence imposed is rendered constitutionally invalid by authoritative constitutional adjudication (here, the invalidation of the death penalty), the sentence cannot stand and must be replaced with a competent sentence, which may warrant remittal to the trial court for resentencing in accordance with the law.