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[2015] ZAWCHC 213
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Ntelekoa and Another v S (A28/2013) [2015] ZAWCHC 213 (5 March 2015)
FREE
STATE
HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Appeal No.: A28/2013
In
the appeal between:
MOHAPI
JOHANNES NTELEKOA &
ANOTHER
Appellants
And
THE
STATE
Respondent
CORAM:
DAFFUE,
J
et
LEKALE, J
et
HINXA,
AJ
JUDGMENT:
DAFFUE,
J
HEARD
ON:
2
MARCH 2015
DELIVERED
ON:
5
MARCH 2015
INTRODUCTION
[1] On 24 January 2013
appellants were convicted by Van Zyl J of murder and housebreaking
with the intention to rob and robbery
with aggravating
circumstances. The next day both were sentenced to life
imprisonment in respect of the first count and 15
(fifteen) years’
imprisonment in respect of the second count. The appellants
were granted leave to appeal against their
convictions to the full
bench.
GROUNDS
OF APPEAL
[2]
The convictions are attacked on the following bases. 1
st
Appellant avers that the court
a quo
erred (a) in finding that
the State has proved its case beyond reasonable doubt, (b) in finding
that his pointing out complied with
all formal requirements, that it
was made freely and voluntarily and without being unduly influenced,
and (c) in rejecting his
alibi as false and not reasonably possibly
true.
[3]
2
nd
Appellant avers that the court
a
quo
erred
in (a) making a credibility and reliability finding in respect of the
witness Mapule Sylvia Ntelekoa, the mother of 2
nd
appellant, and not considering her evidence with caution as she was a
single witness, (b) finding that 2
nd
appellant wanted to confess when he communicated with his mother, (c)
concluding that 2
nd
appellant’s admission that he “
ook
daar saam met Lebohang was”
with
reference to Mr Ben Steyn, the deceased, (and after his confession
that he and Lebohang had murdered a white person - not Mr
Steyn -)
was sufficient to convict 2
nd
appellant on both counts as charged and thus finding that the only
reasonable inference to be drawn from the proven facts was that
the
2
nd
appellant committed the crimes.
THE RELEVANT LEGAL
PRINCIPLES
[4]
Where
an appeal is lodged against a trial court’s findings of fact,
the court of appeal must take into account that the court
a
quo
was
in a more favourable position than itself to form a judgment.
When inferences from proven facts are in issue, the court
a
quo
may
also be in a more favourable position than the court of appeal,
because it is better able to judge what is probable or improbable
in
the light of its observations of witnesses who have appeared before
it. Therefore, where there have been no misdirections
on fact a
court of appeal assumes that the court
a
quo
’s
findings are correct and will accept these findings, unless it is
convinced that they are wrong. See
R
v Dhlumayo and Another
1948 (2) SA 677
(AD) at 705 - 6.
[5]
Therefore, in order to interfere with the court
a
quo
’s
judgment it has to be established that there were misdirections of
fact, either where reasons on their face are unsatisfactory,
or where
the record shows them to be such. See also
S
v Monyane and Others
2008 (1) SACR 543
(SCA) at para [15] where the Supreme Court of
Appeal stated that it is only in exceptional cases that that Court
will be entitled
to interfere with the trial court’s evaluation
of oral evidence, and I quote:
“
This
court's powers to interfere on appeal with the findings of fact of a
trial court are limited. It has not been suggested that
the trial
court misdirected itself in any respect. In the absence of
demonstrable and material misdirection by the trial court,
its
findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them to be clearly
wrong
(S v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645e - f). This, in
my view, is certainly not a case in which a thorough reading of the
record leaves me in any doubt
as to the correctness of the trial
court's factual findings. Bearing in mind the advantage that a trial
court has of seeing, hearing
and appraising a witness, it is only in
exceptional cases that this court will be entitled to interfere with
a trial court's evaluation
of oral testimony (S v Francis
1991 (1)
SACR 198
(A) at 204e).”
There
may also be misdirections, though the reasons were satisfactory, if
it has been shown that the court
a
quo
had
overlooked other facts or probabilities.
[6]
The State’s case was largely based upon circumstantial
evidence, in particular in respect of 2
nd
appellant.
In
R v De Villiers
1944 AD 493
at 508 - 9 the Appeal
Court referred to the well-known
dictum
in
R v Blom
1939 AD 188
at 202 pertaining to the test to be applied when reliance
is placed on circumstantial evidence and pointed out that it is not
each
proved fact that must exclude all other inferences, but the
facts as a whole must do so, and continued as follows:
“
The Court must not take each
circumstance separately and give the accused the benefit of any
reasonable doubt as to the inference
to be drawn from each one so
taken. It must carefully weigh the cumulative effect of all of
them together, and it is only
after it has done so that the accused
is entitled to the benefit of any reasonable doubt which it may have
as to whether the inference
of guilt is the only inference which can
reasonably be drawn. To put the matter in another way: the
Crown must satisfy the
Court, not that each separate fact is
inconsistent with the innocence of the accused, but that the evidence
as a whole is beyond
reasonable doubt inconsistent with such
innocence.”
See
also
S v Ntsele
1998 (2) SACR 178
(SCA) at 182b - f
cited with approval in
S v Boesak
[2000] ZASCA 112
;
2000 (1) SACR 633
(SCA), para [13] at 638f and
S v Reddy and Others
1996
(2) SACR 1
(A) at 8c – g and especially the following
dictum
:
“
A number of circumstances, each
individually very slight, may so tally with and confirm each other as
to leave no room for doubt
of the fact which they tend to establish.
. . . Not to speak of greater numbers, even two articles of
circumstantial evidence,
though each taken by itself weigh but as a
feather, join them together, you will find them pressing on a
delinquent with the weight
of a mill-stone. . . .”
As
mentioned in these three judgments the ambit of the concept of
reasonable doubt does not go so far that the State must prove
the
guilt of the accused “
bo
elke sweempie van twyfel”,
or
put otherwise,
“
beyond
a shadow of a doubt.”
[7]
It is also necessary to consider whether an accused who deliberately
gives false evidence in the hope of, e.g. escaping conviction,
should
lose his case as a penalty for perjury. The often-quoted
dictum
of
Malan JA in
R
v Mlambo
1957
(4) SA 727
(A) at 738 B – D must be considered and I quote:
“
Moreover, if an
accused deliberately takes the risk of giving false evidence in the
hope of being convicted of a less serious crime
or even, per chance,
escaping conviction altogether and his evidence is declared to be
false and irreconcilable with the proved
facts, a court will, in
suitable cases, be fully justified in rejecting an argument that,
notwithstanding that the accused did
not avail himself of the
opportunity to mitigate the gravity of the offence, he should
nevertheless receive the same benefits as
if he had done so.”
It has been
recognised in
S
v Steynberg
1983
(3) SA 140
(AD) at pp 146 – 149 that the application of the
Mlambo
approach
often has satisfactory and correct results, but the application does
not mean an inference must be drawn that an accused
had the intention
to kill someone where he has provided a false explanation about a
fatal assault he perpetrated on someone about
which he alone was able
to give evidence. Every case must be decided on its own
particular circumstances. The nature
of the accused’s
lies is of great importance, but in addition, the context of the case
and all other factors which appear
from the evidence are relevant to
the adjudication of the question whether the inference that the
accused committed the crime(s)
could be drawn. In considering
this, the rules of logic in connection with circumstantial evidence
mentioned above must be
observed.
[8]
It is acceptable in evaluating the evidence in its totality to
consider the inherent probabilities. Heher AJA (as he then
was)
dealt with this aspect as follows in
S v Chabalala
2003
(1) SACR 134
(SCA) at para [15]:
“
The correct approach is to
weigh up all the elements which point towards 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 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.”
[9]
Although it is permissible to test the accused’s version
against the inherent probabilities, it cannot be rejected merely
because it is improbable. It can only be rejected on the basis
of the inherent probabilities if it can be said to be so improbable
that it cannot reasonably possibly be true. See:
S v
Shackell
2001 (2) SACR 185
SCA, para [30] at 194h.
[10]
In
assessing the evidence, a court must in the ultimate analysis look at
the evidence holistically in order to determine whether
the guilt of
the accused is proved beyond reasonable doubt. This does not
mean that the breaking down of the evidence in
its component parts is
not a useful aid to a proper evaluation and understanding thereof.
See
S
v Shilakwe
2012 (1) SACR 16
(SCA) at 20, para [11]. The Supreme Court of
Appeal approved of the following
dictum
:
“
But in doing so, (breaking down
the evidence in its component parts) one must guard against a
tendency to focus too intently upon
the separate and individual part
of what is, after all, a mosaic of proof. Doubts about one
aspect of the evidence led in
the trial may arise when that aspect is
viewed in isolation. Those doubts may be set at rest when it is
evaluated again together
with all the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating
evidence. Far from it. There is no
substitute for a detailed and critical examination of each and every
component in
a body of evidence. But, once that has been done,
it is necessary to step back a pace and consider the mosaic as a
whole.
If that is not done, one may fail to see the wood from
the trees.”
See
S v Hadebe and others
1998 (1) SACR 422
(SCA) at 426f –
h and
S v Mbuli
2003 (1) SACR 97
(SCA) at 110, para
[57].
[11]
The same principles apply when an alibi defence is relied upon by an
accused. The acceptance of the evidence on behalf
of the State
cannot by itself be a sufficient basis for rejecting the alibi
evidence. Something more is required. The
evidence must
be considered in its totality. In order to convict there must
be no reasonable doubt that the evidence implicating
the accused is
true which can only be done if there is at the same time no
reasonable possibility that the evidence exculpating
him is true.
See
S v Van Aswegen
2001 (2) SACR 97
(SCA) at paras [7]
& [8], 100f-101e and
S v Liebenberg
2005 (2)
SACR 355
(SCA) at 358h – 359e, paras [14] and [15]. The
effect hereof is that once the trial court accepts the evidence in
support
of an accused’s alibi as reasonably possibly true, it
follows that the court should find that there is a reasonable
possibility
that the evidence led on behalf of the State is mistaken
or false.
[12]
Bearing in mind the above the correct approach is to consider the
alibi in the light of the totality of the evidence in the
case and
the court’s impression of the witnesses. See
R v
Hlongwane
1959 (3) SA 337
(A) at 341A. In doing so, the
trial court should remind itself that no onus rests on an accused and
that the State must prove
that the accused committed the crime and it
must therefore disprove the alibi.
[13]
A court should particularly be careful in assessing a confession or
pointing out, which is usually nothing but a confession
by conduct,
where such confession is the only evidence incriminating the
accused. See:
S v Mkwanzi
1966 (1) SA 736
(A). This is a judgment pronounced decades before the
promulgation of our Constitution. Furthermore, impartial
persons
should take confessions, and pointings out for that matter.
This was emphasised decades ago in
S v Mbele
1981 (2)
SA 738
(A) at 743. The Appeal Court warned explicitly that the
persistent practice of the police of not using impartial persons was
in complete disregard of repeated expressions of disapproval by the
courts. See also: Kruger A,
Hiemstra’s Criminal
Procedure
24 – 58. In our present constitutional
dispensation courts should even be more wary to ensure that the
rights of accused
persons, especially the unsophisticated and the
poor, are not trampled upon. They are entitled to fair trials
and it is the
duty of the courts to give practical effect thereto.
[14]
The
right to remain silent and its effect on the disclosure of an alibi
defence was thoroughly discussed and considered in
S
v Thebus
[2003] ZACC 12
;
2003 (6) SA 505
(CC) at 533 and further. The CC, per Moseneke
J, found that a distinction may properly be made between an inference
of guilt
from silence and a credibility finding connected with the
election of an accused person to remain silent. It is clear
that
the late disclosure of an alibi is one of the factors to be
taken into account in evaluating the evidence of the alibi, although
standing alone, it does not justify an inference of guilt.
Secondly, such late disclosure is a factor to be taken into
consideration
in determining the weight to be placed on the evidence
of the alibi. The Court stated further:
“
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.”
At
para 68, 537G.
EVALUATION
OF THE COURT
A QUO
’S JUDGMENT
[15]
Several admissions were made and recorded in terms of
section 220
of
the
Criminal Procedure Act, 51 of 1977
. The following were
admitted: (a) the identity of the deceased, to wit Barend Hendrik
Steyn, also known as Ben Steyn, (b)
that Dr Ferreira conducted a
medico-legal autopsy on the deceased on 8 November 2010, (c) the
correctness of the facts and findings
in the report of Dr Ferreira,
(d) the cause of death, to wit blunt trauma to the head and chest,
(e) that the report may be handed
in as exhibit, (f) the deceased did
not incur any further injuries from the scene until the autopsy was
conducted, (g) the correctness
of the photographs taken during the
autopsy and at the scene.
[16]
The pointing out by 1
st
appellant admitted by the court
a
quo
is attacked by Ms Smit on the basis that it did not comply
with formal requirements, was not made freely and voluntarily and
without
undue influence. It is also 1
st
appellant’s
latest version that Capt Laux (“Laux”) of the Organised
Crime Unit in Bloemfontein wrote down his
own version during the
alleged pointing out and that the information contained in exhibit
“G” read with exhibit “E”
was not
communicated by him to Laux. Several photographs taken during the
pointing out are relied upon by the State. The
admissibility of
1
st
appellant’s warning statement was also in
contention during the trial. It did not form part of the
record, but was
handed in from the bar by agreement. Three
witnesses testified on behalf of the State in the trial within a
trial and 1
st
appellant testified in his defence.
Laux assisted in the pointing out as mentioned and Sergeant Weyers of
the Local Criminal
Record Centre, responsible for taking photographs,
accompanied him. They both testified as well as Warrant Officer
Thoko
(“the IO”) who took down the warning statement.
It is 1
st
appellant’s case that he was assaulted by
the IO and other policemen. Ms Smit was not prepared to argue
that her client
had been assaulted as alleged. Initially it was
1
st
appellant’s case that the IO dictated to him
what he had to convey to Laux during the pointing out. He also
maintained
that his constitutional rights were not explained to him
by either the IO, or Laux. Later on 1
st
appellant
changed his version and testified that Laux was the author of the
version contained in the pointing out notes, exhibit
“G”,
and that he did not convey any of the recorded information to him.
[17]
Laux is the commander of the IO and I must at this stage make certain
remarks about the
modus operandi
of the members of the
Organised Crime Unit in Bloemfontein relating to taking down of
confessions and pointings out.
I find it disturbing that an
officer of an investigating unit is utilised to take down confessions
and oversee pointings out by
accused persons. There is no
statutory prohibition, but the practice cannot and should not be
tolerated and/or recommended.
In fact, the practice should be
abolished. There can be no doubt that accused persons always
try to create the impression
in trials within trials that although
the particular officer taking down the confession did not assault
them, he was either fully
aware of assaults and/or threats and/or
have full knowledge of the investigation and the facts established by
then. It is
possible for a member of the same unit to obtain
information from the docket, or the investigation officer, or first
hand by visiting
the crime scene. It is highly likely that
detectives discuss their cases with each other, especially in
so-called priority
cases and a junior officer, in particular, will
call upon his commander or other seniors for advice from time to
time. Confessions
should be taken down by magistrates or officers
from other units. A pointing out should be done under the
auspices of an
officer of a different unit. There is no reason
why the Station Commander of any one of the police stations in
Bloemfontein
could not be approached in this regard. Suspicion
may go a long way to persuade a presiding officer to find that the
State
has not proved its case beyond reasonable doubt. In my
experience, and the facts in this case show that also, accused
persons’
versions as to alleged assaults and/or threats are
usually so exaggerated and fanciful that it is often quite easy to
reject same
as not reasonably possibly true and therefore false if
weighed with the evidence of State witnesses who most of the time are
experienced
police officers and well-groomed witnesses who are used
to be subjected to cross-examination, often by inexperienced legal
representatives
(which was not the case
in casu)
. This
being so should not be a
carte blanche
to the police to carry
on with the aforesaid practice.
[18]
The 1
st
appellant’s improbable version, rife with several
contradictions, did not impress the court
a
quo
and
it was correctly found that his version was not reasonably possibly
true and therefore false. His version changed as the
trial
proceeded and eventually Laux was blamed for writing down his own
version and instructing the appellant from time to time
to point his
finger to various things to be photographed. Bearing in mind
the detailed version contained in the notes prepared
by Laux during
the pointing out, nobody could believe 1
st
appellant that Laux made up the version and attributed that to 1
st
appellant. The testimony of the three policemen is far more
probable than 1
st
appellant’s version which the court
a
quo
correctly
rejected as false. Notwithstanding my criticism above I cannot
find that the pointing out
in
casu
was
admitted incorrectly. I am satisfied that Laux explained 1
st
appellant’s rights to him fully, that the pointing out was done
freely and voluntarily and without undue influence.
It has been
conceded that no assault took place as alleged. It is not
necessary to consider the admissibility of the warning
statement.
[19]
It is necessary to deal with further submissions made during Ms
Smit’s argument. No interpreter was used during
the
pointing out, but Laux confirmed that he and 1
st
appellant
communicated well in Afrikaans. The record confirms 1
st
appellant’s knowledge of Afrikaans and he even instructed his
legal representative about the contents of the alleged communication
between Laux and the son of the deceased. Although accused
persons should as far as possible be allowed to be consulted in
their
mother tongue, it remains a fact that our indigenous languages have
not developed fully in order to translate technical aspects
of the
law into them. One often hears interpreters using Afrikaans or
English when technical aspects are interpreted into
one of the
indigenous languages. I have in mind aspects such as “evidence”
or “getuienis” or “burden
of proof” to
mention a few.
[20]
Ms Smit’s submission that Laux should not have proceeded with
the pointing out at the stage when 1
st
appellant indicated
that he would like to apply for legal aid is without substance and
rejected based on the remainder of the questionnaire,
1
st
appellant’s willingness to proceed with the pointing out and
the totality of the evidence. It is pertinently recorded that
1
st
appellant did not wish to contact any person at that stage. It
could not be expected of Laux to refer 1
st
appellant to
the Legal Aid Board under the prevailing circumstances. In any
event, when 1
st
appellant testified, this aspect was not
even canvassed with him at all, his main concern being that Laux
presented his own version
of the pointing out as that of 1
st
appellant. He testified in vague terms and in response to a
leading question that his rights were not fully explained to
him, as
if he was supposed to know what these rights entailed. He never
said that he was unaware of the consequences of his
pointing out.
Laux was corroborated by Weyers, the photographer. 1
st
appellant had no fresh injuries and his version of the assault by the
IO and others is denied by the IO. Nothing was recorded
by Laux
in this regard and photographs taken of 1
st
appellant’s
torso and back do not support the allegations of an attack as
described. 1
st
Appellant eventually testified that
he did not inform Laux that he had been assaulted.
[21]
I trust that my discomfort and warning relating to the aforesaid
practice of the Organised Crime Unit in Bloemfontein, and
probably
applicable to other units in the country as well, shall be heeded in
future. The police must rather rely on proper
and detailed
investigations based on scientific and experienced detective work,
instead of confessions or pointings out which may
give rise to
suspicion, rightly or wrongly, especially when no other incriminating
evidence is available. I should not be
understood to say that
there is no place for this kind of evidence in our criminal justice
system and my warnings should be seen
in proper context.
[22]
2
nd
Appellant’s mother was a single witness. The court
a
quo
recognised
this and was fully aware of the principles to be applied.
Notwithstanding this it found that Ms Ntelekoa was an
honest and
reliable witness. 2
nd
Appellant’s attempts to discredit his mother failed
completely. In the process he dented any credibility that he
might
have. Logic dictates that a mother would rather try to
protect her child, instead of producing false evidence incriminating
him dismally. The temporary change of her version halfway
through cross-examination was immediately rectified and I must
say
that it was apparent to me whilst reading the record that she
probably accepted that her son’s admission was in reality
a
confession to the crimes committed although this was not communicated
in so many words. During her cross-examination the
following
leading question was put to her by Mr Reynecke:
“
En
u dink hy was betrokke by Ben Steyn se dood?
,
Although aware of the deceased’s death when she visited her
son, Ms Ntelekoa did not before then try to intimate that
her son
actually admitted to be involved in the death of the deceased.
Her reply to the question which she repeated again
was:
“
Ek
dink nie hy het vir my gesê.”
When
she was further cross-examined she became confused and testified that
her son had informed her that he was involved in both
murders.
Finally, in cross-examination she reverted to her initial version,
i.e. that her son admitted to be involved, but that
he never said
that he was involved in the killing of the deceased or that he
assisted in the killing. When 2
nd
appellant communicated with his mother, he did so freely and
voluntarily and without being unduly influenced. He was in
tears and apparently opened his heart to his mother.
[23]
This brings me to the conclusion arrived at by the court
a quo
in
respect of 2
nd
appellant’s involvement in the
crimes. I refer to the authorities quoted. Circumstantial
evidence and the application
thereof in order to adjudicate a
criminal case is in essence based on logic. The State does not
have to prove the guilt of
the accused beyond a shadow of a doubt.
There is no reason to find that 2
nd
appellant’s
comment, in the context of the objective and/or proven facts, should
have been regarded as anything else, but
that he and his
co-perpetrator(s) committed the crimes. There was no reason to
find that he was, e.g. an innocent bystander,
or committed
housebreaking only but did not rob and murder, or that he was merely
an accessory after the fact to mention three
possibilities. It
was for him to tell the story if he was not guilty as charged, which
he failed to do. Mr Reynecke
submitted that Ms Ntelekoa’s
evidence should have been rejected as unreliable and if so, the
inference drawn by the court
a quo
could obviously not have
been drawn. He conceded in argument before us that if we find
that Ms Ntelekoa’s version was
correctly accepted as credible
and reliable, the court
a quo’s
finding shall not be
disturbed. He conceded therefore, correctly in my view, that the only
reasonable inference to be drawn from
the proven facts is that 2
nd
appellant was one of the perpetrators who broke into the deceased’s
house with the intention to rob and robbed and murdered
him.
The facts
in casu
differ from those in
Steynberg
where
the Appeal Court found that the appellant ought to have been
convicted of culpable homicide and not murdered. Here,
the
context of the matter and the objective facts point to one reasonable
inference to be drawn only, in the absence of an acceptable
explanation by 2
nd
appellant and taking into consideration
his untruthfulness, and that is that he committed the crimes, albeit
not on his own.
[24]
Having considered the reasoning of the court
a quo
and the
evidence presented to it, I am satisfied that the court
a quo
committed no misdirections. I have reconsidered and
re-evaluated the evidence and bearing in mind that courts of appeal
are
slow to disturb findings of credibility, I am satisfied that even
if it could be said that this court had the benefit of an overall
conspectus of the full record and is in a better position to draw
inferences, the court
a quo
cannot be faulted. Having
perused the full record and the reasons of the court
a quo
the
dictum
of the Supreme Court of Appeal
S v Monyane and
Others
loc cit,
quoted above, is apposite.
[25]
The appellants had a constitutional right to remain silent, but as
mentioned in
Thebus
supra,
a trial court is
entitled to consider the alibi evidence also in respect of the time
disclosed. The court
a quo
did not make any issue about
the fact that the alibi’s were disclosed at the start of the
trial only. I would have expected
1
st
appellant in
particular to immediately establish the reason for the police’s
action on Saturday, the 6
th
November, the day after the
murder, and to inform them there and then that he and his family
members who were all in attendance
at that stage had been building a
shack over the past two days and that he could not have been on the
deceased’s plot.
The family members would be able to
vouch for the truth if this was indeed so. If he was not given
an opportunity to say anything,
or not even informed of the reason
for removing him from his relatives, the relatives would surely
investigate and communicate
with the police or investigating officer
in order to persuade them of their relative’s innocence.
In any event, if
this is too high an expectation, he should have
given full details of his alibi when his warning statement was taken
down or at
the latest during his plea explanation. His version
according to his plea explanation – that he went with his
brother
to buy corrugated iron which they took to the township –
is not only vague in the extreme, but was contradicted in his
evidence.
They did not buy the material according to his
evidence. He never mentioned in his plea explanation, the
actual reason for
his alleged absence from the deceased’s plot,
to wit the building of the shack over a period of two consecutive
days together
with identified family members and at an identified
address far away from the crime scene. His alibi witness
confirmed his
version in numerous aspects, but in the light of the
totality of the evidence the court
a quo
cannot be faulted for
dismissing it as false. In my view there was ample opportunity
to concoct a version, although this was
denied by the defence
witness.
[26]
2
nd
Appellant is in a not too different situation although
he was not apprehended soon after the commission of the crimes.
His
mother visited him twice whilst he was in custody in respect of a
different offence. When informed that the police were searching
for him following the murder of the deceased and another person, it
would be easy to request his mother to speak to his wife and
the
neighbours in order to establish whether they supported his version
and for her to communicate with the investigating officer
at that
early stage already. That would be the case if he insisted to
be innocent, but as the record reflects, he admitted
to his mother
his involvement at the deceased’s plot. His estranged
wife refused to testify on his behalf. Fact
of the matter is
that although there was no onus on 2
nd
appellant to prove
his alibi, he failed to lay a sufficient factual basis for the court
a quo
to have accepted his version as reasonably possibly true
in the light of the totality of the evidence.
[27]
In conclusion, I am satisfied that the State has proved the guilt of
appellants beyond reasonable doubt and that the court
a quo
arrived at the correct verdict.
[28] Consequently the
following order is issued;
The
appeals of both appellants are dismissed and their convictions are
confirmed.
_____________
J.P. DAFFUE, J
I
concur.
_____________
L.J. LEKALE, J
I
concur.
_____________
M.D
HINXA,
AJ
On behalf of appellants:
Ms L Smit and Mr D Reynecke
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On behalf of respondent:
Adv C van der Merwe
Instructed
by:
Director of Public
Prosecutions
BLOEMFONTEIN