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[2016] ZASCA 22
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Mojapelo and Another v S (574/2014) [2016] ZASCA 22 (8 March 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Non reportable
Case
No: 574/2014
In
the matter between:
TINKY
SOPHIE MOJAPELO
FIRST APPELLANT
ANTOINETTE
NKHESANI MASUKU
SECOND
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Mojapelo
v The State
(574/2014)
[2016] ZASCA 22
(18 March 2016)
Coram:
Lewis,
Tshiqi, Petse, Willis and Saldulker JJA
Heard:
17
February 2016
Delivered:
8
March 2016
Summary:
Criminal Law:
Whether
the State proved beyond a reasonable doubt that appellants are guilty
of murder where the only evidence is that of an accomplice,
warned in
terms of
s 204
of the
Criminal Procedure Act 51 of 1977
, who was
found to be untruthful and whose evidence was uncorroborated.
ORDER
On
appeal from:
North
Gauteng High Court, Pretoria (Ledwaba, Tuchten and Louw JJ sitting as
court of appeal).
The
following order was made on 17 February 2016:
1
The appeal is upheld.
2
The convictions and sentences of both appellants are set aside.
JUDGMENT
Saldulker
JA (Lewis. Tshiqi, Petse and Willis JJA concurring):
Introduction
[1]
After hearing the parties in this matter, the appeals of both
appellants were upheld and their convictions and sentences were
set
aside with reasons to follow. These are the reasons.
[2]
The appeal turns on the question whether the trial judge’s
findings, based entirely on evidence of an accomplice, which
was
disbelieved by the judge, were correct. On the night of 28 September
2005, a red Toyota bakkie belonging to Mr Albert Mojapelo
was
discovered in a deserted patch of veld by an Inspector Makhuba, some
distance from a public road, in the vicinity of Orange
Farms. Next to
the bakkie lay Mr Mojapelo, who had been shot in the head and had
died. It was common cause that at the scene of
the murder were a Mr
Orlando Mandoza and a Mr Sakhele Malwane. The appellants, Ms Sophie
Tinky Mojapelo (the first appellant),
and Ms Antoinette Mkhentsane
Masuku (the second appellant) were charged together with Mr Mandoza
in the South Gauteng High Court
(Vereeniging Circuit) (Satchwell J),
with six counts, namely, conspiracy to commit murder, kidnapping,
murder of the deceased (the
first appellant’s husband),
contraventions of the
Firearms Control Act 60 of 2000
for the
unlawful possession of a firearm and ammunition, and pointing of a
firearm. Mr Mandoza, who was the third accused at the
trial,
absconded after having been released on bail in the magistrate’s
court, and the trial proceeded against the two appellants
only.
[3]
On 18
June
2009, Satchwell J convicted both appellants of the murder of the
deceased and sentenced them to life imprisonment. They were
acquitted
of the remaining charges. On 19 June 2009, the trial court granted
the appellants leave to appeal to the full court of
the North Gauteng
High Court, Pretoria against their conviction and sentence. The full
court (Ledwaba, Tuchten and Louw JJ concurring)
dismissed their
appeal.
[4]
Initially, special leave to appeal to this court was sought only by
the second appellant. Special leave was granted to her.
But it was
only after this court drew the first appellant’s attention to
the fact that the second appellant’s appeal
was to be heard on
17 February 2016, that she also applied for leave to appeal. In the
event, the first appellant’s application
for special leave was
made on the day of the hearing of this matter, and it too was
granted. Consequently both appellants were
before this court.
[5]
The issue before this court is whether the State discharged the onus
of proving beyond a reasonable doubt that the appellants
committed
the murder. In this regard, the State relied on the direct evidence
of Mr Malwane, who is a single witness, and an accomplice,
who
was
warned by the trial court in terms of s 204 of the Criminal Procedure
Act 51 of 1977 (the CPA). His evidence formed the foundation
of the
State’s case against the appellants. The trial court made
certain credibility findings in respect of Mr Malwane, and
it will
become necessary to deal with his evidence in some detail. There are
limited grounds on which an appeal court will interfere
with the
credibility findings of a trial court.
[1]
This appeal consequently turns, as I have said, on the question
whether Mr Malwane’s evidence was correctly accepted by the
trial court and the full court. Counsel for the appellants raised
several other issues before us, but
in
light of the conclusion that I reach on the merits of the matter, it
will not be necessary to consider all of these.
The
facts according to Mr Malwane
[6]
Mr Malwane was employed by the deceased and the first appellant as a
driver in their diverse array of businesses, including
selling and
installing of curtains and gardening services. He testified that some
months after he had been employed by them, the
first appellant
reported to him that she had been told by her friend, the second
appellant, that she should kill her husband, because
she (the second
appellant) no longer had a husband and that it would be better for
the two of them to be widows. He refused to
be a part of this plan,
he said, and in fact threatened to inform the South African Police
Service if the deceased was killed.
Nevertheless, so his evidence
went, despite this initial resistance and threat he remained involved
in the further discussions
surrounding the plan. He said that some
time later he was present when a meeting to discuss the plan was held
between the appellants
and Mr Mandoza. However, on this occasion, the
appellants and Mr Mandoza agreed to abandon their plan to murder the
deceased. But
this was not the end of the matter. They agreed that it
would be necessary to pay Mr Mandoza R3 000 in order to ensure
that
he did not kill the deceased. The reason for this was, it would
seem, that Mr Mandoza had already prepared the ‘muti’
for
the deceased’s murder. Some days later he saw the appellants
pay an amount of money to Mr Mandoza, ostensibly to ensure
that the
deceased would not be killed.
[7]
Mr Malwane testified that he was at the deceased’s home on the
night of the murder. He said that it was intended that
he would drive
with the deceased to his house and be dropped off there. Shortly
before he and the deceased left in the deceased’s
bakkie, the
first appellant borrowed his cellular phone and made a phone call to
Mr Mandoza. On the way to Mr Malwane’s house,
another motor
vehicle forced them to stop. They were hijacked by Mr Mandoza and
three others, two of whom were armed with firearms.
The deceased was
placed in the rear seat of the bakkie and restrained by two of the
hijackers. Mr Malwane was instructed at gunpoint
to drive the bakkie
to a deserted patch of veld, where the deceased was shot in the head
and killed by one of the four men.
[8]
Mr Malwane testified that he was assaulted by the hijackers, and
although there was some discussion about killing him too, Mr
Mandoza
ordered his cohorts not to do so. He was given a lift back to his
house by the assailants, and instructed to telephone
the first
appellant and inform her that the ‘job was done’, which
he did. He kept the keys of the deceased’s
bakkie, which he hid
in the veld near his house. His explanation for this action was that
he thought that it would make his story
more credible to the police.
He claimed that he was threatened by Mr Mandoza and the appellants
not to inform anyone of what had
transpired. It was only some days
later, following the murder, that he revealed to a Captain Mankgwe
that the appellants were responsible
for the death of deceased.
[9]
It was Mr Malwane’s testimony that there had been constant
communication between the first appellant and Mr Mandoza, using
Mr
Malwane’s cellular phone, which the first appellant had
constantly borrowed. Significantly, no cellular phone records
were
presented by the State demonstrating any communication between the
first appellant and Mr Mandoza. The cellular phone records
which were
produced by the defence during the trial indicated, however, that
there was communication between Mr Malwane and Mr
Mandoza.
[10]
Two other witnesses were called by the State, Ms Makgato (the sister
of the deceased) and Ms Soldat. The latter testified to
certain
events prior to the murder of the deceased where the appellants had
discussed with her the proposed purchase of two vehicles.
Secondly,
the second appellant had enquired about the time it had taken for an
insurance pay-out following the death of Ms Soldat’s
husband.
Ms Soldat’s evidence was of no consequence and the trial court
correctly placed no reliance on it.
[11]
Following her arrest, the first appellant was detained at the
Ennerdale Police station. Ms Makgato testified that she had visited
the first appellant at the police station, and that, when the first
appellant saw her she spontaneously uttered the following statement:
‘I am asking you to forgive me. I do not know what got into me.
Satan has power’. The trial court held, given the context
of
the statement, the only reasonable inference that could be drawn was
that the first appellant was acknowledging responsibility
for the
murder of the deceased. That was the State’s case against the
appellants.
[12]
The appellants then applied for a discharge in terms of s 174 of the
CPA. This was refused by Satchwell J. The appellants did
not testify
in their defence and called witnesses whose evidence did not advance
their case.
The
reasoning of the trial court
[13]
In her judgment convicting the appellants, Satchwell J found that Mr
Malwane’s version of the events ‘does not
make sense’,
was ‘bizarre’, ‘nonsensical’, and
‘unbelievable’, so much so that she failed
to make an
order discharging Mr Malwane from prosecution. I do not propose to
deal with each of the points advanced by the trial
court for these
adverse findings against Mr Malwane. The following excerpts from the
trial court’s judgment suffice:
‘
On
Mr Malwane’s evidence there was no reason for anyone ever to
tell him about any plan that had ever been hatched to kill
Mr
Mojapelo. According to him he was never asked to do anything in
connection with Mr Mojapelo’s killing. According to him
he
never agreed to do anything. The sharing of this plot informing him
of this criminal conspiracy was, according to Mr Malwane,
for no
purpose whatsoever. . . .
Secondly,
according to Mr Malwane, he immediately expressed reluctance, indeed
shock, from the outset. His first reference was to
the South African
Police. Yet, having been so reluctant and so shocked, according to Mr
Malwane, had accused 1 and 2 continued
to keep him informed of the
outcome of their earlier plans. He was taken to the meetings with
Orlando [Mr Mandoza], he was told
about and he observed the payment
of money. . . .
Thirdly,
the sum of R3 000 from his funds, which featured in his evidence, was
never demanded from him in connection with the killing
of Mr Mojapelo
or the non-killing of Mr Mojapelo. According to him his assistance
was never sought in connection with the killing
or non-killing of Mr
Mojapelo, he simply offered the money out of fear that he would been
harmed because he had known about their
plans, now abandoned. . . .
Fourthly,
the entire import of Mr Malwane’s evidence is that there was a
criminal conspiracy but there was no longer a criminal
conspiracy,
the fact that this criminal conspiracy had been abandoned before it
was carried out . . .
.
. . . It is inexplicable that there could even have been a plan that
Mr Malwane not know about it if he was so continuously involved
in
all these events. After all, he claims that he was not needed and he
was never asked to do anything. After all, it would be
very unsafe
and dangerous for perpetrators to a murder to reveal everything to
somebody who was innocent and uninvolved. After
all, Mr Malwane is a
person who claims that he had shown reluctance or repugnance and had
even made reference to the South African
Police. And finally, of
course, notwithstanding this plan and everything that went on, Mr
Malwane never did tell Mr Mojapelo. .
. .
On
Mr Malwane’s own version, I must conclude that his
protestations of innocence are not believable and are not credible.
If anything was going on then he knew exactly what was happening. . .
.
All
these questions, all these discrepancies and all these nonsensical
versions are immediately resolved if one understands that
every piece
of evidence that is nonsensical is nonsence simply because it seeks
to render Mr Malwane innocent of any wrongdoing.
Once one accepts
that indeed he was involved in the events he describes then his
evidence is explicable. . . .
It
is my finding that Mr Malwane was an accomplice to the plan he
describes. It is my finding that Mr Malwane was probably a
perpetrator
in one or more ways of this conspiracy. Months in advance
he was told about what was planned to happen. He was taken to a
meeting
with Orlando. He was told about the need for money. He saw
Orlando being paid money. He was clearly considered trustworthy
enough
on his version to be party to all these plans.’
[14]
From all of the above, it is obvious that the trial court appeared to
recognise that Mr Malwane’s evidence was unbelievable,
fraught
with inherent improbabilities and nonsensical. Although the
trial court understood and appreciated that there must
be safeguards
in place when relying upon the evidence of an accomplice, especially
corroboration of material parts of an accomplice’s
testimony,
nevertheless, the trial court accepted that Mr Malwane’s
version of the events was generally convincing, except
to the extent
that it portrayed him as an innocent bystander. It found that it was
only that aspect that was inherently improbable
and ridiculous, and
the remainder could safely be relied upon. Relying on
S
v Francis
[1990] ZASCA 141
;
1991 (1) SACR 198
(A), the trial court said that it
is not expected that the evidence of an accomplice witness should be
wholly consistent and wholly
reliable, or even wholly truthful, since
the ultimate test after due caution is whether the court is satisfied
that the essential
features of the story that ‘he tells is a
true one’. The trial court concluded that the ‘one
inconsistency which
ran
like a golden thread through Mr Malwane’s evidence was his
ridiculous attempt to persuade the court that he was ignorant
of what
was going on’. This ‘golden thread of inconsistency’
led the trial court to conclude that he was an accomplice,
and it was
only this ‘golden thread’ that was false, and that the
remainder of Mr Malwane’s evidence, (apart
from that to
exculpate himself ) was of probative value.
And
that the only ‘unreliable aspect’ of Mr Malwane’s
evidence, so held the trial court, was that a cellular phone
exchange
had taken place between the first appellant and himself following the
murder during which he had informed the first appellant
that the
‘job’ was done. On this aspect, as noted, it is
significant that the State did not make available the cellular
phone
records of the first appellant, and thus the State failed to prove
that there was in fact such an exchange.
[15]
Mr
Malwane’s evidence is replete with inconsistencies and lies to
the extent that one is unable to discern the truth from
the lies. I
t
is illogical that
the
trial court, having found that Mr Malwane was untruthful in so far as
his complicity was concerned, nevertheless chose to believe
that part
of his testimony that the two appellants had conspired to murder the
deceased despite its improbability.
Almost
a century ago, Solomon J in
R
v Kumalo
1916 AD 480
at 484, stated that where a witness is untruthful on
aspects of importance, there should be a good reason to justify a
court finding
that other aspects of his evidence are the truth.
Clearly there were no ‘good reasons’ to justify the
acceptance of
Mr Malwane’s evidence by the trial court. The
trial court in effect speculated that the evidence incriminating the
appellants
must be true while that exculpating Mr Malwane was false.
Even if that evidence was thought to be true, it was in all the
circumstances
so improbable that it should have been rejected on that
basis alone.
[16]
It is trite that a court should approach the evidence of an
accomplice with caution, and courts are repeatedly warned of the
‘special danger’ of convicting on the evidence of an
accomplice. In
R
v Ncanana
1948 (4) SA 399
(A) at 405, this court said
:
‘
The
cautious Court . . . will often properly acquit in the absence of
other evidence connecting the accused with the crime, but
no rule of
law or practice requires it to do so. What
is
required
is that the trier of fact should warn himself . . . of the
special danger of convicting on the evidence of an accomplice;
for an
accomplice is not merely a witness with a possible motive to tell
lies about an innocent accused but is such a witness peculiarly
equipped, by reason of his inside knowledge of the crime, to convince
the unwary that his lies are the truth. This special danger
is not
met by corroboration of the accomplice in material respects not
implicating the accused, or by proof
aliunde
that the crime charged was committed by someone; . . . The risk that
he may be convicted wrongly . . . will be reduced, and in
the most
satisfactory way, if there is corroboration implicating the accused.’
See
also
S v Hlapezula & others
1965 (4) SA 439
(A) (cited with approval in
S
v Scott-Crossley
[2007] ZASCA 127
;
2008 (1) SACR 223
(SCA) para 7).
[17]
This court expressly stated in
S v Mhlabathi & another
1968 (2) SA 48
(A) at 50G-51A, cited with approval in
S v Makeba &
another
[2003] ZASCA 66
;
2003 (2) SACR 128
(SCA) para 12, that:
‘
.
. . [T]he Court should warn itself of the peculiar danger of
convicting on the evidence of the accomplice and seek some safeguard
reducing the risk of the wrong person being convicted, but such
safeguard need not necessarily be corroboration. Once however the
Court decides that in order to be so satisfied it requires
corroboration, it would be pointless to look for corroboration other
than corroboration implicating the accused.’
[18]
In instances where conspiracy is involved, there must be at least
some reliable evidence which specifically links the accused
to that
conspiracy. In
S
v Eyssen
[2008] ZASCA 97
;
2009 (1) SACR 406
(SCA) para 12, this court
considered the statement of a s 204 witness who was a member of a
criminal gang, and who had testified
against the other gang members.
This court stated that the s 204 witness was a ‘particularly
dangerous witness’,
who could have put any of the accused at
any scene. Accordingly, this court emphasised that corroborating
evidence meant ‘corroborated
by evidence implicating an
accused’. There was none in this case.
[19]
The
trial court did not consider the aforegoing ‘golden thread of
inconsistency’ in Mr Malwane’s testimony as
a fundamental
flaw in the State’s case. It concluded that Mr Malwane’s
evidence, which was that of an accomplice, along
with the statement
attributable to the first appellant by Ms Makgato, which it regarded
as incriminating, was sufficient to create
a prima facie case against
the appellants. As neither of the appellants elected to testify at
the trial, the trial court reasoned
that they did not rebut the prima
facie case against them, and, accordingly, there was proof beyond a
reasonable doubt in accordance
with the principles laid out in
S
v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC) (especially para 24). In my view
the trial court misdirected itself in reaching this conclusion. One
cannot accept the trial
court’s reasoning that the alleged
utterances of the first appellant to Ms Makgato constituted an
acknowledgement of her
guilt in her husband’s murder, and were
thus corroborative evidence for Mr Malwane’s evidence. It is
clear from the
aforegoing authorities that corroboration means
‘corroboration implicating the accused’. The alleged
statement by the
first appellant to Ms Makgato was neither clarified
nor explained. One would have expected Ms Makgato to be shocked and
outraged
on hearing the statement. Instead, she appears to have
ignored the utterances by the first appellant, testifying that she
was concerned
with discussing the funeral arrangements for the
deceased and finding his identity document. We simply do not know
what the first
appellant’s statement meant.
[20]
It is extraordinary that the trial court found that a prima facie
case had been made out if the only evidence implicating the
accused
presented by the State at the end of its case was the unreliable,
uncorroborated and flawed testimony of an accomplice.
In the
circumstances of this matter, the appellants’ failure to
testify did not justify the trial court’s finding that
the
State had proven its case beyond a reasonable doubt against the
appellants.
The
trial court appears to have ignored other parts of the judgment in
S
v Francis
[1990]
ZASCA 141
;
1991 (1) SACR 198
(A) at 203 G-H, where Smalberger JA
pertinently observed that:
‘
As
stated by Greenberg JA in
Shenker
Brothers v Bester
1952
(3) SA 664
(A) at 670G, “the circumstances that evidence is
uncontradicted is no justification for shutting one’s eyes to
the
fact, if it be a fact, that it is too vague and contradictory to
serve as proof of the question in issue”
.’
Reasoning
of the full court
[21]
The full court largely confirmed the correctness of Satchwell J’s
conclusion. It did not engage in any meaningful way,
as it was
enjoined to do, with the reasoning of the trial court on the facts or
law.
The
full court was alive to the fact that Satchwell J had branded Mr
Malwane as untruthful and his evidence as bizarre, and nonsensical.
Yet it reasoned that Satchwell J had ‘entirely correctly,
adopted an holistic approach to the evidence before her’,
which
they regarded as ‘ample’, and held that there ‘was
no misdirection on the part of the trial judge in the
evaluation of
the evidence of Mr Malwane’. I disagree. Although a court of
appeal generally defers to a trial court’s
factual findings,
this does not exonerate it from carrying out a careful, critical and
detailed examination of the whole body of
the evidence to satisfy
itself that the findings of the trial court are correct. Not to do so
would be abdicating its responsibility
as a court of appeal. In light
of what has been discussed above, it is obvious that the full court
did not thoroughly analyse the
judgment of the trial court.
Complaints
regarding the conduct of the trial
[22]
The appellants have raised a number of complaints in regard to the
manner in which their trial was conducted. It is not necessary
to
deal with these aspects in any detail. It suffices to mention a few.
The appellants complain that Satchwell J refused an application
in
terms of s 174 of the CPA for their discharge at the end of the
State’s case. This can be disposed of shortly. A
refusal to
grant a discharge is not appealable.
[2]
Nevertheless, in the light of the trial court’s finding that Mr
Malwane was untruthful and his evidence nonsensical and bizarre,
it
is astonishing that Satchwell J did not discharge the appellants
where there was no credible prima facie evidence implicating
them.
The credibility of a witness is not normally a factor at the stage of
a consideration of a discharge in terms of s 174 of
the CPA, but it
may be taken into account where a very high degree of
untrustworthiness has been shown. See
S
v Mpetha & others
1983
(4) SA 262
(C) at 265D-G. The test is whether there is no evidence
upon which a reasonable judge acting carefully may convict.
[3]
[23]
The appellants have also raised complaints of incompetence in respect
of some of their legal representatives. There appears
to be little
merit in these accusations. They have also complained about the
conduct of the trial judge during the course of the
trial. Having
regard to the trying circumstances in which the trial was conducted
(numerous postponements occasioned by changes
in the appellants’
legal representatives) Satchwell J’s repeated expressions of
frustration were understandable.
Conclusion
[24]
There was an absence of reliable and credible evidence against the
appellants. T
he
trial court was clearly wrong in finding that the appellants’
guilt was proved beyond a reasonable doubt. Hence the convictions
should not have been allowed to stand by the full court.
[25]
In the result the following order was made on 17 February 2016:
1
The appeal is upheld.
2
The convictions and sentences of both appellants are set aside.
_______________________
H
Saldulker
Judge
of Appeal
APPEARANCES:
For
the Appellants:
P Shapiro
Instructed by:
S Shapiro Attorneys,
Johannesburg
Mpobole & Ismail,
Bloemfontein
For
the Respondents:
C Mnisi
Instructed by:
Director of Public
Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
R v Dhlumayo
&
another
1948 (2) SA 677
(A) at 705-706.
[2]
See
R
v Lakatula & others
1919 AD 362.
[3]
R v Shein
1925 AD 6.