in the high court of south africa (bophuthatswana … · the other suspect had a blue top on. the...
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IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
CA NO.: 179/04
In the matter between:
KGOMOTSO BIGBOY KEKANA APPELLANT
VS
THE STATE RESPONDENT
FULL BENCH APPEAL
LEEUW J, LANDMAN J & MOKGOATLHENG AJ
JUDGMENT
MOKGOATLHENG AJ
[1] The Appellant was arraigned before Hendler J in the
Bophuthatswana Provincial Division Circuit Court in Temba
on two counts of murder and the unlawful possession of a
firearm.
[2] The Appellant was found guilty on both counts and was
sentenced to life imprisonment in respect of murder and
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three years in respect of the unlawful possession of a
firearm.
[3] The Appellant lodged an application for leave to appeal
against both his conviction and sentence. This application
was dismissed by the Court a quo.
[4] The Appellant then petitioned the Honourable President of
the Supreme Court of Appeal for leave to appeal against the
dismissal of his application by Hendler J. This petition was
acceded to, with leave to appeal granted to the Appellant to
prosecute the appeal before the Full Bench of this Court.
[5] The charges against the Appellant arose from an incident on
the night of 19 December 1999 between 11:30 and 12
midnight when Maile, a security guard, was shot and killed at
the Shoprite Checkers Complex situated at Temba City.
Grounds of Appeal
[6] The grounds of appeal that the Appellant relied on are as
follows:
1. The Court a quo erred and misdirected itself in
adopting the approach that what it had to decide upon
is whether the Appellant’s version is reasonably
possibly true;
2. The Court a quo erred and misdirected itself in holding that the fact as to whether the Appellant was wearing a white top or
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blue top is not a decisive factor in the case and that the decisive factor is the revolver and the cellphone which were allegedly found in the possession of the Appellant and handed over to the Police. This is particularly more so in that the Court a quo had already found that the fact of such clothing could in fact have some importance as regards the accused’s defence;3. The Court a quo erred and misdirected itself in finding that the Appellant was one of the two people in the yard during the night in question and consequently that the Appellant was armed with a .38 revolver which had an empty cartridge and that the deceased was killed by the Appellant or his alleged partnerin crime, and that it was unnecessary for the Court a quo to make a finding as to who fired the fatal shot as the deceased died of multiple shots and more particularly that by virtue of common purpose with the alleged partnerin crime it is sufficient to show that the Appellant had the necessary intention to kill.4. The Court a quo erred and misdirected itself in finding that the Appellant was wholly untruthful and that it could place no reliance on what it was told by the Appellant. This is particularly so because the Appellant’s version was corroborated by the evidence of Mr Tshabalala, Inspector Manka and Inspector Lengwati.5. The Court a quo erred and misdirected itself in that it placed undue emphasis on the alleged confidence and apparent truthfulness of the witness, Mr Zanele Diamond whilst placing less emphasis and/or ignoring and not taking into account the relevant and credible evidence and/or considerations placed before it by the Appellant and his witnesses.6. The Court a quo erred and/or misdirected itself in finding that the clothing of the accused, on the night of the commission of the offences, was irrelevant and would not assist in taking the matter further.7. The Court a quo erred and/or misdirected itself in not taking into account and/or in placing less weight on the evidence of Mr Tshabalala, Inspector Manka and Inspector Lengwati about the clothing of the accused on the night in question, which evidence sufficiently corroborates the version of the accused himself. The Court a quo thereto failed to take into account the relevant evidence and/or considerations.
8. The Court a quo erred and/or grossly misdirected itself
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in holding that the only inference it would draw is that
the cellphone that was handed over to the police, is the
cellphone that came from the Appellant.
9. The Court a quo erred and misdirected itself in not
finding that the State had failed to adduce evidence
which proves beyond reasonable doubt that the
Appellant committed the offences referred to in the
indictment and therefore that there existed a
reasonable doubt as to the guilt of the Appellant
warranting his acquittal on all the two counts.
Ad Sentence
10. In sentencing the Appellant on 13 March 2002 to life
imprisonment on count 1 and 3 years on count 2, the
Court a quo failed to properly and judiciously exercise
the discretion bestowed upon it by the Criminal Law
Amendment Act 105 of 1997 (“the Act”), which, inter
alia, allows the Court to deviate from the prescribed
sentences if there are substantial and compelling
circumstances, in that:
10.1 it overemphasised the seriousness and
prevalence of the crime, whilst giving less
emphasis and/or undue weight to the Appellant’s
personal circumstances of the crime and the
need to rehabilitate the Appellant;
10.2 it rigidly applied and overemphasised the fact
that the law, which the government passed,
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required the most severe sentence to be
imposed, whilst failing to take into account the
other possible or appropriate and available forms
of punishment, including correctional supervision;
and
10.3 it misconstrued the meaning, scope and content of the requirement of “substantial and compelling circumstances” as provided for in the Act.
11. Accordingly, the sentence imposed by the Court a quo
is too harsh and induces a sense of shock and no
reasonable Court would have imposed same.
[7] The crucial issue at the trial was whether the State had
proved beyond a reasonable doubt that the Appellant was
one of the two persons who were present in the premises of
the Shoprite Checkers Complex, and who were involved in
the fatal shooting of the deceased. The Appellant denied
that he was present inside the Shoprite Checkers Complex
or that he participated in the fatal shooting of the deceased.
The Law
[8] The State bears the onus to prove its case beyond a
reasonable doubt. The definitive statement in regard to the
onus borne by the State is crisply enunciated by Olivier JA in
S v Phallo and Others 1999 (2) SACR 558 (SCA) at
562G563E.
[9] The approach adopted in determining whether the onus of proof has been discharged, is to evaluate the totality of evidence in
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an intergrated fashion and not in a self contained manner. In this regard the remarks of Nugent J (as he then was) in S v Van der Meyden 1999 (1) SACR 447 (W) at 448H450C are instructive:
“In whichever form the test is expressed, it must be satisfied upon a reasonable consideration of all the evidence. A court does not look at the evidence implicating the accused in isolation in order to determine whether there is proof beyond reasonable doubt, and so too does it not look at the exculpatory evidence in isolation in order to determine whether it is reasonably possible that it might be true. In R v Hlongwane 1959 (3) SA 337 (A), after pointing out that an accused must be acquitted if an alibi might be reasonably be true, Holmes AJA said the following at 340H341B, which applies equally to any other defence which might present itself:‘But it is important to bear in mind that in applying this test, the alibi does not have to be considered in isolation …. 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.’”.
[10] In an appeal the power of a court of appeal to upset the
findings of the trial court is strictly circumscribed. In the
absence of a patent misdirection by the trial court, a court of
appeal will rarely interfere with the conclusion arrived at,
even if it is in doubt as to the correctness of the conclusion.
Davis AJA in R v Dhlumayo and Another 1948 (2) SA 677
(A) at 705.
[11] To determine whether the points raised in the appeal, have
merit, the evidence adduced at the trial which impacts on the
questions of guilt or innocence has to be considered.
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Evidence[12] A summary of the evidence is that three security guards
Diamond, Maile and Moema were on duty guarding the
Shoprite Checkers Complex at Temba City between
11:00pm and 12 midnight on the 19th of December 1999.
Moema and Maile were on patrol within the complex of
Shoprite Checkers. Maile came back running and reported
to Diamond who was in the security room on the roof of the
Complex that there were two persons in the yard of Shoprite
Checkers. Maile and Moema went to investigate. Diamond
went to the roof of the building. He saw two persons,
carrying weapons. Maile commanded these two persons to
stop. These persons started shooting. Maile, who later died
as a result of a gunshot wound, shot back. These persons
ran towards gate no. 2. Moema and Maile were near gate
no. 2 when the shooting started. The whole complex was lit
by spotlights. The receiving area of the complex is
surrounded by a wall except where there are gates 1, 2 and
3.
[13] Diamond saw the two suspects running towards gate 2. He
observed these suspects for approximately two minutes until
they started shooting at Moema and Miale who were at gate
2. Diamond then ran back to the control room to summon
the police. The police arrived thereafter.
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[14] Diamond states that one of the suspects was wearing a blue
two piece overall. It was either a tracksuit or an overall.
The other suspect had a blue top on. The suspect who was
wearing a blue two piece overall suite or tracksuit was taller
than the one who had a blue top on.
[15] Maile was armed, Moema was not. Diamond left the control room and contacted Moema through his two way radio. Moema instructed Diamond to repair to the roller door and open same for him. Moema had apprehended one of these persons. Moema came in through the roller door with this person, the Appellant. The Appellant had in his possession a Smith and Wesson revolver with plus minus three cartridges in it which were empty. He also had an Erickson cell phone in his possession. This cell phone at some stage rang, Diamond answered and someone asked who some person was, Diamond responded by asking who this person was, the line then went dead.
[16] Under crossexamination Daimond could not dispute that the
Appellant was arrested outside the Complex next to the
Shoprite Checkers premises. Diamond disputes that the
Appellant was wearing jeans, a white tshirt and tekkies.
Diamond is not sure whether the suspect who ran away was
wearing a track suite or overall, but insists that the top was
blue.
[17] Diamond concedes making two police statements. In one
statement he does not mention any clothing, or any
description of clothing. In another statement he mentions
that one of the suspects had a white top on. In court he
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mentions a blue top. In one statement Diamond says one
was wearing a white and blue track suit top. The Appellant
disputes that when he was arrested he was wearing a blue
overall suit. Diamond says in his statement the description
of the blue and white top refers to the suspect who ran away.
Diamond states that the Appellant was wearing a blue two
piece overall. The Appellant denies being in possession of
a cellphone or a firearm. Diamond says Moema was
carrying a firearm which he said belonged to the Appellant.
Diamond says the Appellant confirmed that it was his
firearm. Diamond does not mention any firearm in his
statements.
[18] Diamond says from where he was standing on the roof he
could not see a person walking on the road. The spotlight
shines into the yard of Shoprite Checkers. It is dark on the
road.
Appellant’s Evidence
[19] The Appellant states that he was at a party (bash) at Greg’s
place in Temba. He requested Tshabalala for a lift home.
Tshabalala said he was waiting for somebody. The
Appellant left on foot for home after telling Tshabalala the
route he was going to take. He walked, until he was about to
go past Checkers. He heard gunshots and a security officer
came from within the premises of Shoprite Checkers. He
fled into a passage. This security officer held him up.
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Accused lifted his hands and was then searched and
thereafter arrested. Nothing was found in his possession.
He had a pair of blue jeans on, a white tshirt and white
tekkies. He was arrested outside the premises and was
taken through a gate into the Complex.
[20] He was assaulted on the head with the butt of a firearm. He
was asked his name. The police arrived and he was leg and
hand cuffed and taken to the police station. He saw people
shooting next to the street and he fled into a passage and
heard shots from within the Checkers complex. He was
outside the Shoprite Checkers Complex yard. The Appellant
says he was arrested in a part of Checkers inside a wall
(meaning the passage) outside the fenced area. The
Appellant denies being arrested inside the fenced area. The
Appellant knows Tshabalala by sight. He last saw
Tshabalala when he was in a police van. This van was
stopped by a white police male, and this policeman
assaulted him with fists. He heard Tshabalala’s voice and he
saw him. Tshabalala was among a lot of people who had
gathered at the scene.
Evidence of Inspector Manka
[21] He testified that he is a police inspector with 12 years
experience. He was called to attend at the scene. He drove
a van and he was in the company of Inspector Lengwati.
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He saw the Appellant at the scene. The Appellant was
wearing a pair of white tekkies, a pair of jeans and a white t
shirt. He did not place the Appellant in the police van. He
was guarding the corpse of the deceased (Maile). He was
handed a firearm and a cellphone by one security officer. He
handed these in at the charge office. He saw the Appellant
in the police van and at the charge office.
Although this incident happened two years ago he still
remembers the clothes worn by the Appellant. He did not
note the clothes in either his pocket book or the two
statements he made. This was a mistake. He saw blood on
the Appellant’s shirt but did not mention this in his statement.
Evidence of Tshabalala
[22] He knows the Appellant. He stays in Temba not far from the Appellant’s place. He saw the Appellant on 20 December 1999 in a police van. He had earlier seen the Appellant at Greg’s place at 12 o’clock. The Appellant had asked for a lift. He drives a yellow BMW. He told the Appellant he was waiting for someone. He stopped at the scene because there was someone lying next to the road. There was a policeman who informed him about the robbery and shooting. At the scene he only spoke to a policeman and security officer who told him the Appellant was involved in this crime. He did not believe this as he was earlier in the company of the Appellant. He gave the policeman his particulars. The Appellant was wearing a white tshirt, white tekkies and a normal pair of denim jeans. He saw blood on the Appellant’s tshirt. The Appellant did not tell him what route he would be taking. He is a school teacher. He was surprised to see the Appellant inside the police van. He told these people he was with the Appellant earlier.
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He went to the Appellant’s place to find out what was happening with this case. He went to Brits to consult with Mr Mokhesi the Appellant’s lawyer. He parted with the Appellant about 30 minutes before he arrived at the scene.
Evidence of Inspector Lengwati
[23] The Court called Inspector Lengwati. He is a sergeant, was
called to the scene with Inspector Manka. They found a
person lying in the street. They summoned extra police.
Two men came out from within the complex. They had the
Appellant at the back of their van. He and Manka were given
a firearm and a cellphone. He went to the charge office.
The Appellant was wearing a white tshirt, a pair of jeans and
some tekkies. He remembers the Appellant’s attire because
he saw the Appellant. He did not mention the Appellant’s
clothing in his statement.
Ballistic Report
[24] The Ballistic report is not conclusive. The report states that:
“As gevolg van die afwesigheid van voldoende merke wat vir identifikasiedoeleindes gebruik word, is dit nie moontlik om te bepaal of the vuurwapen gemeld in 3.1 (the Smith & Wesson found in accused possession) is dit nie moontlik om te bepaal of the vuurwapen vermeld in 3.1, die doppie vermeld in 3.3 (the alleged three cartridges found in the 38 Smith & Wesson revolver in the accused’s possession) en gemerk B2 afgevuur het, al dan nie.”.
Evaluation of Evidence
[25] The Appellant’s version is not improbable. The assertion
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that he was at a bash at about 12 o’clock is corroborated by Tshabalala a teacher by profession who is an impartial witness. The assertion that he was not inside the Shoprite Checkers Complex; that when he was walking past Shoprite Checkers he heard shots; fled into a passage and was arrested by a security officer who came from within the Checkers premises is probable, more especially because the accused after being apprehended by the security officer Moema was brought into the Shoprite Checkers complex through the roller door which was opened by Diamond.
[26] The State relied only on the evidence of Diamond regarding
the identification of the Appellant. In terms of Section 208 of
Act 51 of 1977 an accused person may be convicted on the
evidence of any competent single witness. There is no other
evidence to gainsay the Appellant’s version relating to this
arrest. There is no evidence that the Appellant ran out of the
Shoprite Checkers complex. The Appellant states that he
was wearing a white tshirt, a pair of blue jeans and white
tekkies. This is corroborated by Tshabalala, Inspector
Manka and Sergeant Lengwati.
[27] Diamond did not have sufficient opportunity to identify the
Appellant. Diamond’s evidence is not satisfactory in all
material respects in respect of the identification of the
Appellant. There is a reasonable possibility that the
Appellant was not one of the persons seen by Diamond
inside the Shoprite Checkers Complex on the night in
question. The Appellant’s version is not improbable, more
especially as the only witness who could have given
evidence on the apprehension of the Appellant, Moema was
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murdered.
[28] The evidence of Diamond although honest is not reliable and trustworthy
pertaining to the identity of the two suspects who were inside the Shoprite
Checkers Shopping Complex. Diamond did not have a clear unobstructed
view of these two suspects. He was on top of the roof looking down at these
two suspects who were running towards the gate. He was so to speak seeing
the back of the two suspects who were being chased by his colleagues Moema
and Maile. Although the complex was well illuminated Diamond could not
(and did not) see the two suspects’ faces, and did not testify that he did,
although he states that he kept the suspects under observation for two minutes.
[29] Diamond’s evidence pertaining to the identity of the two suspects that one of the suspects was wearing a blue two piece overall or track suit, the other a blue top on; that the suspect who was wearing a blue two piece overall suite or track suit was taller than the one who had a blue top is not satisfactory nor conclusive. Diamond states that after observing the two suspects shooting at Moema and Miale he ran to the control room to call the police. The next time he saw any of the suspects was when Moema came through the roller door after having apprehended one of these suspects, the Appellant.
[30] An Appeal Court will not, without cogent reasons which
palpably indicate that the Court a quo misdirected itself,
interfere with the Court a quo’s findings of fact. In my view,
the Court a quo misdirected itself in making the following
findings:
(a) The Court a quo made a finding that it is not important
what they (the two suspects) were wearing, that what
they were wearing is irrelevant; and made no
difference to the adjudication of the case. In my view,
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the identity of the clothing the Appellant wore on the
day in question is significant and probably decisive as
there was no evidence pertaining to the facial features
of the Appellant.
(b) The Court a quo also made a finding that it does not
have to decide the case on the question of clothing,
that the decisive factor in this case was the firearm and
the cellphone which were found in the possession of
the Appellant. In my view, there is no link between the
firearm and the cellphone in relation to the murder.
[31] In making these findings the Court a quo misdirected itself in
that the Court in determining whether the version of the
Appellant is reasonably possibly true is enjoined to evaluate
the totality of the evidence in an integrated manner; not in
isolated segments or in a self contained, compartmentalised
manner as the Court a quo did.
[32] The sketch presented in evidence relating to the Shoprite
Checkers Complex clearly shows that the passage where the
accused says he was arrested is outside the premises of
Shoprite Checkers Complex. He was arrested next to the
Metropolitan Offices which does not form part of the Shoprite
Cherkers Complex and its perimeter is fenced off from the
said Complex.
[33] Diamond’s evidence does not reveal that the Appellant is
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one of the two persons who ran out of gate no. 2.
Diamond’s description of the clothing of the two suspects
excludes the description of the clothing the Appellant wore
on the day in question. We don’t know where Moema
arrested the Appellant. The Appellant’s version must stand
uncontroverted on this aspect.
In the premises, I find that the State has not proved its case
beyond a reasonable doubt. The appeal is upheld. The
conviction and sentence are set aside.
__________________R D MOGKOATLHENGACTING JUDGE OF THE HIGH COURT
I agree
__________________M M LEEUWJUDGE OF THE HIGH COURT
I agree
__________________A A LANDMAN
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JUDGE OF THE HIGH COURT
DATE OF HEARING : 26 NOVEMBER 2004DATE OF JUDGMENT :
APPEARANCES:
FOR THE APPELLANT : ADV SHOKOANAFOR THE RESPONDENT : ADV MAEMA
ATTORNEY FOR THE APPELLANT : GURA TLALETSIATTORNEYFOR THE RESPONDENT : STATE ATTORNEY
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