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NORTH WEST HIGH COURT, MAFIKENG

CASE NO. CAF 09/2011

In the matter between:

ZEBILON RAMOLOI RATLHAGANE ....................................................1^ST APPELLANT

RAPULANA ROY MOSUWE ...............................................................2^ND APPELLANT

DANIEL SEFAKO MAHLATSI ..............................................................3^RD APPELLANT

JAN SEMAKALENG MALETE ..............................................................4^TH APPELLANT

and

THE STATE ...............................................................................................RESPONDENT

____________________________________________________________________________

FULL BENCH APPEAL

____________________________________________________________________________

GUTTA J.

A. INTRODUCTION

[1] This is a full bench appeal against the conviction and sentence imposed by Gura J. The appellants were convicted of two counts of murder and two counts of kidnapping of Enoch Frans Morwati (“Enoch”) and Lawrence Rantwane Mpoleleng (“Lawrence”), and on 18 September 2010 sentenced to life imprisonment on each of the murder counts and seven years imprisonment on each of the kidnapping counts. In the Court a quo, there were six accused in number. The appellants were accused 1, 2, 3 and 5, respectively. Accused 4 and 6 were acquitted.

[2] On 25 March 2011, leave to appeal to the full bench of this division was granted on both the conviction and sentence. This matter initially came before the full bench on 25 February 2012. It became apparent early in the proceedings that counsel for the appellants, Mr Molobedi, was not adequately prepared to prosecute the appeal, in that he had delivered scanty heads of argument, his address to the Court was disjointed and he was unable to provide the Court with the citation of cases that he relied on, or to direct the Court to passages in the record in support of submissions made to Court. The matter was then postponed to 02 March 2012. Mr Molobedi was directed to file supplementary heads of argument and to provide the Court with the first page of Exhibit “G”, which was omitted in the record.

B. GROUNDS OF APPEAL

[3] The grounds of appeal relied upon are the following:

3.1. The Court provisionally admitted the hearsay statement, Exhibit “G”, without affording the appellants’ legal representative an opportunity to object to the admission of the statement.

3.2. The statement made by Lawrence to Constable Mookane, Exhibit “G”, was unlawfully obtained.

3.3. The Court a quo erred in admitting Exhibit “G”, under Section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 (“the Act”).

3.4. Section 35(5) of the Constitution of the Republic of South Africa Act 108 of 1996 supersedes Section 3(1)(c) of the Act.

3.5. The learned Judge erred in not explaining to the appellants the provisions of the Criminal Law Amendment Act 105 of 1997 (“the CLAA”).

3.6. The learned Judge failed to apply the test relevant and applicable to the single witness, Andries Monjelele.

[4] At the hearing of the appeal, the only ground of appeal relied upon by Mr Molobedi was in relation to Exhibit “G”, namely, a statement made by Lawrence to Constable Mookane. Notwithstanding the fact that Mr Molobedi appeared to abandon the other grounds of appeal, albeit not raised in the notice of appeal but in the heads of argument, this Court considered all the above grounds of appeal in the interest of justice.

C. SUMMARY OF THE EVIDENCE

[5] The facts briefly are that on 10 August 2008, a group of people in Dipompong took the law into their own hands and brutally murdered the two deceased, namely, Enoch and Lawrence, who had allegedly committed crimes such as theft, housebreaking and robbery in the community. Enoch and Lawrence were kidnapped, their hands and feet were tied, they were then ordered to sit in a tractor tyre, doused with petrol and then torched. Enoch died at the scene, while Lawrence died in hospital a few days later.

[6] The first witness called by the State was Andries Monjelele (“Monjelele”). He testified that on Sunday, 10 August 2008 between 19h00 and 20h00, he was standing with Enoch, next to Kukie’s tavern, when appellants 1, 2 and 4 emerged. Appellant 4 grabbed Enoch by his clothes and appellant 1 joined him and uttered the words, ‘we have been looking for you, thief’. Visibility was good as there was light in the tavern and next to the tavern. Appellants 1 and 4 pulled Enoch to the ground. Appellant 2 attempted to grab Monjelele. Monjelele broke loose and hit appellant 2 with his fist. He ran home, where he hid in the yard and observed appellants 1, 2 and 4 drag Enoch past his home. The lights were on at his home and he was able to observe appellants 1, 2 and 4. Appellant 1 held Enoch’s shoulder, while appellants 2 and 4 stood on either side of Enoch, who was screaming and crying.

[7] The second State witness was Constable Jabu Magopela, who testified that he was on duty on 10 August 2008, when he received a message through his police radio that Constable Magopela and others were seeking help at Dipompong. He went to Dipompong, where he found a group of people gathered together. He saw Enoch kneeling on the ground with his hands and feet tied. He was approached by the owner of the house, who told him that they did not need his help. Constable Magopela explained to him that if they allege that Enoch committed robbery they should report this to the police so that a docket may be opened. A white Nissan bakkie vehicle approached and he observed Lawrence being dragged from the bakkie and put next to Enoch. Appellant 3 informed him that Enoch and Lawrence had committed wrongs and that they were tired of them being arrested and released, and they were taking the law into their own hands. Appellant 1 approached them and he asked appellant 3 what he is saying to the police officials, and that he must let the police go so that they could discipline the deceased. The police left the scene and called for backup.

[8] The third witness to testify for the State was Inspector Petrus Magopela, who visited Lawrence in hospital two days later, on 12 August 2008. He testified that Lawrence’s entire body was severely burnt and that he was in pain.

[9] Constable Mookane testified that on 12 August 2008, two days after Lawrence had been burnt, he visited Lawrence in a private ward in the Odi Hospital. Lawrence’s body, from his head to his feet, was covered in bandages. Lawrence was able to speak and made a statement to Constable Mookane. Although Constable Mookane requested Lawrence to hold the pen and sign the statement, Lawrence was not able to sign because of his medical condition. His skin had fallen off, he was cold and in pain.

[10] Constable Mookane stated that Lawrence took an oath and confirmed that he was telling him the truth. He testified that he signed the statement as commissioner of oaths to show that the statement was made freely and voluntarily.

[11]

11.1. The State applied for the introduction of hearsay evidence in terms of Section 3 of the Act, to admit the statement obtained from Lawrence by Constable Mookane. [See record pages 121–123.]

11.2. The Court provisionally admitted the statement as Exhibit “G” and at the end of the State case, ruled in favour of admitting Exhibit “G”.

[12] Constable Mookane testified that Lawrence told him that on 10 August 2008, at approximately 18h00, appellants 1, 2, 3 and Papiki Moumakwe, who were well known to him approached him and accused him of robbing a certain man and told him that the community are looking for him.

[13] He was forced to get into a white 1400 bakkie, where he was driven to Dipompong. On arrival there, he found Enoch tied up and he was put next to Enoch and tied. From there he and Enoch were told to walk to the bushes, where they were told they were going to burn them. They were ordered to sit in a tractor tyre and appellant 2 poured petrol on Enoch and lit a match, which he threw on Enoch, then appellant 1 poured petrol on him, lit a match and threw it on him. He managed to get out of the tyre, rolled on the floor and extinguished the flames, whereafter he ran home. He was taken to Odi Hospital.

[14] Sandra Mmanoko Mpoleleng, who is the sister to Lawrence, testified that on 10 August 2008, members of the community informed her that they were looking for Enoch and Lawrence, who are thieves. She went home to tell her mother and when she returned she saw people holding Enoch, whose hands were tied behind his back. She returned home and telephoned the police. When she went back she found appellant 1 arguing with a police officer. She saw Lawrence, whose hands were also tied, seated next to Enoch. Appellant 1 hit Enoch with an open hand on his face. She was afraid and left. On her way home she saw a lady, one Santina Lale, pushing a tyre that looked like a tractor tyre in the direction where Enoch and Lawrence were seated. Under cross-examination, she testified that she saw appellants 1, 2 and 3 at the scene where Enoch and Lawrence were tied together.

[15] At home, she again phoned the police, who said they were waiting for backup. Later Lawrence opened the door to their house. He was naked and smelling of petrol and went to his bedroom. She followed him where she found him walking around the bedroom, his skin was falling off his body and he was in pain. She asked him what happened and he mentioned the names, Z-boy, Roy, Jan, Sefako, Abram and Papiki, and then he asked for some blankets. They found transport and took Lawrence to the Odi Hospital. She confirmed that she knew all the people referred to by Lawrence. Z-boy was identified as accused 1 (appellant 1), Roy as accused 2 (appellant 2), Sefako as accused 3 (appellant 3), Jan as accused 5 (appellant 4), Abram and Papiki were accused 4 and 6, who were acquitted in the trial Court. Under cross-examination, she testified that she saw appellants 1 and 3, and Abram at the scene.

[16] Appellant 1’s version is that on 10 August 2008, he left his home at 14h00 and went to the tavern at Dipompong. At approximately 20h00 to 21h00, he asked appellant 3, who is his neighbour and had a van, for a lift home. On their way, there was a crowd of people who stopped their vehicle and hijacked them. The group told them that they wanted to go to Moiletswane to fetch a thief and they climbed on the back of their vehicle. They arrived at Moiletswane, where the group jumped off the vehicle and entered a tavern and dragged Lawrence from the tavern onto the vehicle. The group ordered them to drive to Dipompong. On arrival there, they observed someone (Enoch), who had been tied up. The group took Lawrence from the van to where Enoch was seated. Appellants 1 and 3 then left and appellant 3 dropped appellant 1 at his home. Appellant 1 did not return to the scene.

[17] One Mary Ratlhagane, appellant 1’s wife, was called as a witness. She testified that on 10 August 2008, appellant 1 left the house at 15h00. She was not feeling well and was asleep. Appellant 1 woke her up at approximately 21h00 to 22h00. She testified that appellant 1 wanted to return to where the noise was outside and she told him not to go as she was ill and because he had been consuming alcohol. He did not go out and went to sleep.

[18] Appellant 2, whose nickname is Roy, testified that on 10 August 2008, he was at his home from approximately 09h30. He was in the yard with his wife selling beers and cold drinks. He watched soccer from 15h00 to 17h00, and thereafter watched a DVD with one Ramashilo Kgwara (“Kgwara”). In the evening they heard noise from outside. Kgwara was the first to leave the house to investigate what was happening. Appellant 2 met Kgwara, who was returning from where the group had gathered. Kgwara informed appellant 2 that a group of people had arrested a thief. He and Kgwara then returned to the yard. Appellant 2 did not see what happened and was unable to identify any person in the group.

[19] Appellant 2’s witness, Elizabeth Murumwa Mosuwe, testified that she is married to appellant 2. That at about 16h00 to 17h00, on 10 August 2008, appellant 2 was at home selling beer. She went to sleep and left appellant 2 watching DVD’s with Kgwara. She was asleep when appellant 2 came to bed.

[20] Appellant 3’s version is that on 10 August 2008, at approximately 19h00, he had a meeting at Kukie’s tavern where he consumed beers and left the tavern at 20h45. When leaving, he was approached by appellant 1, who is his neighbour and who wanted a lift home. When leaving the gate of the tavern, a group of youth stopped them and jumped on the back of his van. They directed appellant 3 to drive to Moiletswane. On arrival, the group went into the tavern and returned dragging Lawrence onto the van. The group told appellant 3 to drive them to Matjeu’s place. On arrival he observed many people there. The group took Lawrence off the van and appellant 3 overheard them say that there is another person who must be fetched. He testified that he did not alight from the vehicle, and left before they requested the further use of his vehicle. He dropped appellant 1, at his home and thereafter went home to sleep.

[21] Appellant 4 testified that on 10 August 2008, he went to church at 10h00 and arrived home at approximately 19h00. His wife dished out food at 20h00. He heard a whistle blow in the village and he left his home to investigate. On his arrival, he found Enoch tied on the floor. He looked at him and returned home and never returned.

D. ANALYSIS OF THE GROUNDS OF APPEAL AD SERIATIM

1) The Court provisionally admitted the hearsay statement, Exhibit “G”, without affording the appellants’ legal representative an opportunity to object to the admission of the statement.

[22] It is trite law that the right to challenge adverse evidence is a foundation component of the fair trial rights regime decreed by our Constitution. See S v Libazi 2010 (2) SACR 233 SCA.

[23] In determining whether the appellants’ legal representative was afforded an opportunity to object to the admission of Exhibit “G”, a close examination of the record is required. On page 135, lines 24–25 and page136, lines 1–7:

“Court: . . . Mr Khumalo here is an application which was lodged on the 8^th of May to introduce hearsay evidence through this witness constable Mookane. This witness, this hearsay evidence as I understand it goes around the communication between constable Mookane and Lawrence the second deceased. I just want the full names of Lawrence again. Lawrence Rantoane Mpuleleng. It is the verbal communication between the two of them and it is also an alleged statement which he took from him. Could I hear you whether or not you have any objection against this introduction of evidence?

Mr Khumalo: [Inaudible]

Court: So you actually object against the reception of this evidence?

Mr Khumalo: [Inaudible]”

(Own emphasis)

[24] Mr Khumalo’s response to the question from the Court as to whether he objected to the introduction of hearsay evidence is inaudible. However, it is apparent that the Court enquired from the defence whether they have an objection. What follows on record appears to be a reply by Mr Dikgopo, the State legal representative, to Mr Khumalo’s objection on page 137, line 10, where he says, inter alia:

“Mr Dikgopo: . . . The argument by my learned friend is to the effect that the statement was not signed by the deceased.”

One can only infer that the defence raised an objection that the statement was not signed.

[25] The comment by the Court at page 137, lines 18–20 also lends support to the submission that the defence was afforded an opportunity to object and did object to the State’s application to introduce hearsay evidence:

“Court: . . . The application at this stage by the State to introduce hearsay evidence provisionally which is opposed by the Defence.”

(Own emphasis)

[26] Also, the Court when called upon by the State, at the end of the State case, to admit the hearsay evidence finally, on page 188, line 7–11, stated:

“Court: . . . Counsel for the accused Mr Khumalo objected to the reception of this type of evidence because it is hearsay evidence.”

[27] It is not the defence case that essential evidence is missing and cannot be reconstructed.

[28] In view of the above, the Court is of the view that even though Mr Khumalo’s objection is inaudible, it appears from the record that the application for admission of hearsay evidence was opposed and the defence was afforded an opportunity to ventilate its objection. The Court a quo, after hearing submissions from both the defence and the State, provisionally admitted the hearsay evidence, in terms of Section 3(3) of the Law of Evidence Amendment Act 45 of 1988 (“the Act”).

[29] Accordingly, there is no merit in this ground of appeal.

2) The statement made by Lawrence to Constable Mookane was unlawfully obtained.

[30] Mr Molobedi submitted that Lawrence did not sign the statement. He also submitted that Constable Mookane, who was the investigating officer, could not take a statement and commission it in the absence of witnesses. That there were two police officers in the hospital, who could have been called as witnesses.

[31] The above ground calls for a consideration of the admissibility of the hearsay evidence.

THE LAW: HEARSAY EVIDENCE

[32] Section 3 of the Act governs hearsay evidence:

“3. Hearsay evidence.―

(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless―

(a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;

(b) the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or

(c) the court, having regard to―

(i) the nature of the proceedings;

(ii) the nature of the evidence;

(iii) the purpose for which the evidence is tendered;

(iv) the probative value of the evidence;

(v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;

(vi) any prejudice to a party which the admission of such evidence might entail; and

(vii) any other factor which should in the opinion of the court be taken into account;

is of the opinion that such evidence should be admitted in the interests of justice.

(2) The provisions of subsection (1) shall not render admissible any evidence which is inadmissible on any ground other than that such evidence is hearsay evidence.

(3) Hearsay evidence may be provisionally admitted in terms of subsection (1)(b) if the court is informed that the person upon whose credibility the probative value of such evidence depends, will himself testify in such proceedings: Provided that if such person does not later testify in such proceedings, the hearsay evidence shall be left out of account unless the hearsay evidence is admitted in terms of paragraph (a) of subsection (1) or is admitted by the court in terms of paragraph (c) of that subsection.

(4) For the purposes of this section―

‘hearsay evidence’ means evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence;

‘party’ means the accused or party against whom hearsay evidence is to be adduced, including the prosecution.”

[33] There is no requirement under Section 3 of the Act, that the written statement must be signed by the person who makes the statement or that it must be a sworn statement before it is admitted as constituting hearsay evidence.

[34] There is a difference between receiving evidence of a document in order to prove what the contents of that document are and receiving evidence of a document in order to prove that its contents are true. Two general rules apply to the former, firstly, the original document must be provided and secondly, evidence must be adduced to satisfy the Court of its authenticity. See Commentary on the Criminal Procedure Act, Section 222, page 24–85.

[35] A document may be identified by a witness, who is:

35.1 the writer or signatory of that document;

35.2 the attesting witness;

35.3 the person having lawful custody of the document;

35.4 the person who found it in the possession of another; or

35.5 a handwriting expert.

See Howard & Decker Witkoppen Agencies & Fourways Estates (Pty) Ltd v De Sousa 1971 (3) SA 937 (T) at 940.

[36] The common law rule that attested documents may only be authenticated by calling one of the attesting witnesses no longer applies. Section 36 of the Civil Proceedings Evidence Act 25 of 1965 (“the CPEA”), has in terms of Section 222 of the CPA been extended to criminal proceedings. The broader provisions of Section 3(1) of the Act may be invoked to supplement Section 222. See S v Shank & Others [2006] ZASCA 105; 2007 (1) SA 240 (SCA) at [180]–[181].

[37] Mr Molobedi lost sight of the fact that the application to admit the hearsay evidence obtained from Lawrence was twofold, namely:

37.1 firstly, the written statement obtained by Constable Mookane from Lawrence; and

37.2 secondly, the verbal communication between Lawrence and Constable Mookane.

[38] The fact that Lawrence did not sign the statement or that there were no witnesses who signed the statement, or that it is the investigating officer to whom Lawrence made the statement, does not render it unlawful, provided it was brought within one of the exceptions to the hearsay rule in Section 3(1) of the Act, which I consider herebelow.

3) Admission of Exhibit “G” by the Court (under Section 3(1) of the Act

[39] It is common cause that the parties did not agree on the admission of the evidence in terms of Section 3(1)(a) of the Act, and that Section 3(1)(b) of the Act did not apply as Lawrence, the deceased, is the person upon whose credibility the probative value of such evidence depends. Hence, the relevant provision is Section 3(1)(c), in terms of which the Court had to consider six specific factors as well as any other factor which in the Court’s opinion should be taken into account.

[40] In the exercise of the trial Judge’s discretion to admit or not to admit the evidence the trial Judge must try to find whether there are certain safeguards which are present in the case which are in the form of positive objective facts which visually guarantee the reliability of hearsay evidence. See S v Ndhlovu & Others 2002 (2) SACR 325 (SCA).

[41] In S v Mbanjwa 2002 (2) SACR 100 (D), McLaren J dealt with the admissibility of a statement given by the deceased shortly after being burnt. The Court found that the statement was akin to a dying declaration and these types of hearsay statements were exceptionally admissible at common law.

[42] The decision on the admissibility of hearsay evidence is in general one of law and not discretion. See McDonald’s Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd & Another 1997 (1) SA 1 (A) at 27D–E; S v Ndhlovu & Others 2002 (2) SACR 325 (SCA) at 339e–g.

[43] The Court considered the following factors prescribed in subparagraph (c) of the Act:

“The nature of the proceedings – This is a criminal case where two people have been kidnapped and burnt;

The nature of the evidence – The evidence consist of, firstly, a verbal report which was made by Lawrence to his sister, Sandra Mpoleleng (“Sandra”), on the same night of the incident when he arrived home, and secondly, a written statement made by Lawrence to Constable Mookane two days after the incident at hospital, which was handed in as Exhibit “G”;

The purpose for which the evidence is tendered – The evidence was tendered to show that the appellants’ version or explanation of what transpired was false and that Lawrence and Enoch were collected from Kukie’s tavern and taken to Matjeu’s place, where the mob had gathered, against their will and they were poured with petrol and struck with a match so that they could burn to death;

The probative value of the evidence – Considering that the maker of the statement has not been cross-examined, depending on the reliability of the statement and the extent to which it is supported or corroborated by other objective evidence, the evidence should be weighed up with all other evidence presented, including evidence led by the defence;

The reason why the evidence is not tendered by the maker of the statement – The maker of the statement, Lawrence, died after the second statement was made and two days after the report was made to Sandra;

Any prejudice to a party which the admission of such evidence might entail – The Court took into account whether the accused would be prejudiced in their defence if the statement was taken into account and equally weighed it with the likely prejudice to the State case if the Court was to exclude the statement. The Court had made a final ruling at the close of the State case so that the appellants should know precisely what the magnitude of the case is against them and the nature of the case for the State that they had to rebut, when they took the witness stand.

Any other factor which should, in the opinion of the Court, be taken into account and is of the opinion that such evidence should be admitted in the interest of justice. The Court considered that the concern within the community was suspected criminal activity and the perception that the police were all the time releasing suspects back to the community on the basis of insufficiency of the evidence against them. It would have been difficult that the community would volunteer information about the suspects and the State would find itself in difficulties in securing a conviction against any of the accused.”

[44] The Court a quo referred to the case of Makhathini v Road Accident Fund 2002 (1) SA 511 (SCA) at 522C–D, where a contextual approach was encouraged and the evidence being considered in a global form taking into account its various parts. Since the factors in Section 3(1(c)(i)–(vi) overlap, it may be more important to give effect to their cumulative effect than to regard each as a separate determinant of admissibility. The Court referred to certain pre-conditions designed to ensure that the evidence is received only in the interest of justice and nothing else.

[45] The Court a quo found independent evidence, which corroborated what Lawrence is alleged to have said, namely:

“- Appellants 1 and 3 testified that they fetched Lawrence from Moiletswane to Dipompong, confirming what Lawrence said, that he was fetched by appellants 1 and 3 in a white 1400 van.

- Lawrence said that he was accused of stealing money from an old man, Matjeu, and this was also the appellants’ version.

- Lawrence stated that Enoch was tied to the gate and both his hands and feet tied with rope, and that members of the community had already gathered around him. The defence also agreed with this.

- Lawrence said, as he was walking from Matjeu’s house to the bush, he was assaulted. Dr Mofikwe, who completed the J88 medical report form, Exhibit “D”, where he noted that Lawrence ‘has multiple lacerations all over the body not caused by fire but by assault’.

- Dr Edwards, who conducted the post-mortem on the body of Lawrence, Exhibit “E”, also found contusions on the left trunk and the left arm, and thigh had abrasions and this is fairly consistent with the injuries mentioned by Lawrence in his statement.

- Lawrence said that as they were walking to the bush, one person was pushing a motor vehicle tyre and another was carrying a container of petrol. The police found a tyre resembling that of a tractor burning at the scene. Inspector Magopela said he could smell petrol on his arrival at the scene at stage 3. Sandra also testified that when Lawrence arrived at home that night, he was naked and his flesh was falling from his body and there was a smell of petrol.

- Lawrence said at stage 3 in the bush, the community shouted that they were thieves and should be killed. They were forced to sit around a tyre, petrol was poured over them and they were torched. It is common cause that the deceased were burned and that the community was looking for suspected thieves.”

[46] The Court was correct in its view to find that the written statement by Lawrence, and the verbal report by him to Sandra on the night of the incident had a high degree of reliability and that due weight had to be accorded to them.

[47] The Court a quo, in my view, correctly considered all the requirements of Section 3(1)(c)(i)–(vi) and considered their cumulative effect in admitting the evidence in the interest of justice.

4) Section 35(5) of the Constitution of the Republic of South Africa Act 108 of 1996 supersedes Section 3(1)(c) of the Act.

[48] The constitutionality of Section 3 was challenged before the Supreme Court of Appeal in S v Ndhlovu & Others supra and the Court at paragraph [26] 341c held that the Act provides a constitutionally sound framework for the admission of hearsay evidence. In the above case, Cameron JA, as he then was, dealing with Section 3(1) said the following:

“It has correctly been observed that the admission of hearsay evidence ‘by definition denies an accused the right to cross-examine’, since the declarant is not in court and cannot be cross-examined. I cannot accept, however, that ‘use of hearsay evidence by the State violates the accused’s right to challenge evidence by cross-examination’, if it is meant that the inability to cross-examine the source of a statement in itself violates the right to ‘challenge’ evidence. The Bill of Rights does not guarantee an entitlement to subject all evidence to cross-examination. What it contains is the right (subject to limitation in terms of s 36) to ‘challenge evidence’. Where that evidence is hearsay, the right entails that the accused is entitled to resist its admission and to scrutinize its probative value, including its reliability. The provisions enshrine these entitlements. But where the interests of justice, constitutionally measured, require that hearsay evidence be admitted, no constitutional right is infringed. Put differently, where the interests of justice require that the hearsay statement be admitted, the right to ‘challenge evidence’ does not encompass the right to cross-examine the original declarant.”

[49] Accordingly, there is no merit in this ground of appeal.

5) The learned Judge erred in not explaining to the appellants the provisions of the Criminal Law Amendment Act 105 of 1997.

[50] In S v Mvelase 2004 (2) SACR 531 (W), the Court found that where an accused is legally represented, it is not necessary to explain to the accused the nature of the sentence.

[51] In S v Ndlovu 2003 (1) SACR 331 (SCA), it was held that where the State intends to rely upon the sentencing regime created by the CLAA, a fair trial will generally demand that its intention be pertinently brought to the attention of the accused at the outset of the trial. If this is not done in the charge sheet, then it must be done in some other form, so that the accused is placed in a position to appreciate properly and in good time the charge that she or he faces as well as the possible consequence.

[52] Also in S v Mseleku 2006 (2) SACR 574 (D) at 581(A), Pillay J stated that:

“In summary, based on Ndlovu’s case, I come to the conclusion that if any reference is made in the indictment to the states reliance on the Minimum Sentence Act, a court may well be justified in assuming that counsel would have drawn that to the accused’s attention. Where no mention is made, notwithstanding its factual framework, the provision should be brought to the attention of the accused by the court whether the accused is represented or not. Where mention of the Act is made in the indictment, and the accused is unrepresented, the court must pertinently draw the accused attention to its provision.”

[53] In S v Nkadimeng 2008 (1) SACR 538 (T), the Court found that there was no duty on the trial Court to ensure that the accused is aware of the gravity of a conviction on a charge carrying the minimum sentence in circumstances where an accused has legal representation and the charge sheet makes clear reference to the fact that the prosecution would rely on the minimum sentence provision in the CLAA.

[54] It is common cause that all the appellants were legally represented and that their indictment in respect of the murder charge stated clearly that “the accused is guilty of murder, read with the provisions of Section 51(1)(a) of the CLAA.

[55] Accordingly, there is no merit in this ground of appeal.

6) The learned Judge failed to apply the test relevant and applicable to the single witness, Andries Monjelele.

[56] Section 208 of the CPA provides that an accused may be convicted of any offence on the single evidence of any competent witness.

[57] The courts have developed a rule of practice that requires the evidence of a single witness to be approached with special caution. See Rex v Mokoena 1956 (3) SA 85, 86.

[58] The trial Court was alive to the fact that Monjelele was a single witness and that his evidence should be approached with caution. The Court also considered that Monjelele was a single witness with regard to the issue of who captured Enoch outside the yard of Kukie’s tavern and brought him to Matjeu’s gate, where the community had gathered. The Court approached his evidence with caution and warned itself of the dangers inherent in convicting on the basis of uncorroborated evidence of a single witness. The Court also referred to the case of R v Mokoena 1932 OPD 79 and applied the principle referred to in S v Sauls & Another 1981 (3) SA 172 (A) at 180E, and quoted as follows:

“There is not [sic] rule of thumb or formula to apply when it comes to a consideration of the credibility of a single witness. The trial judge will weigh his evidence, will consider its merits and demerits and having done so, will decide whether despite the fact that there are some shortcomings or defects or contradictions in his testimony, he is satisfied that the truth has been told.”

[59] There are cases where the evidence of a single trial witness has been found to be clear and satisfactory in every material respect, and hence sufficient for proof beyond reasonable doubt, without corroboration implicating the accused or with some additional hallmark of trustworthiness, other than the interest value of the child’s evidence. See Director of Public Prosecutions v S 2000 (2) SA 711 (T).

[60] Monjelele knew the appellants, particularly appellants 1, 2 and 4, for many years, he referred to them by their names and surnames when testifying. There is evidence that the place was well illuminated. Monjelele also had another opportunity to see the three appellants when they passed with Enoch in the street as he was hiding inside the flower bed in the yard, at a distance of about five paces. The Court was cautious and kept in mind the possible grudge which was put by the defence in relation to the appellant.

[61] There is no formula to apply when it comes to the consideration of the credibility of a single witness. The trial Court should weigh the evidence of a single witness and consider its merits and demerits, and having done so, should decide whether it is satisfied that the truth has been told despite the shortcomings or defects or contradictions in the evidence. See S v Saul 1991 (3) SA 172 (A) at 180E – G.

[62] Evidence must be evaluated in its entirety. See S v Caller 2008 (2) SACR 595 (C); S v Crossberger [2008] ZASCA 13; 2008 (2) SACR 317 (SCA).

[63] Monjelele did not contradict himself and there were no inherent improbabilities in his evidence. The trial Court correctly found him to be an honest and reliable witness.

[64] Accordingly, I am of the view that the trial Court assessed and evaluated the evidence of Monjelele, and correctly applied the cautionary rule.

E. ONUS

[65] The onus of proof in a criminal case is discharged by the State if the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that the accused is entitled to be acquitted if his version is reasonably possibly true.

[66] Nurgent J, in S v Van der Meyden 1999 (1) SACR 447 (W) at 448f–g, stated that:

“These are not separate and independent tests, but the expression of the same test when viewed from opposite perspectives. In order to convict, the evidence must establish the guilt of the accused beyond reasonable doubt which will be so only if it is at the same time no reasonable possibility that an innocent explanation, which has been put forward might be true. The two are inseparable, each being the logical --- of the other.”

[67] Appellants 1 and 2 were identified by Monjelele as well as by Lawrence in his hearsay statement and oral communication to Constable Mookane, and his oral communication to Sandra. The evidence is to the effect that appellant 1 poured petrol on Lawrence and set him alight, and appellant 2 poured petrol on Enoch and set him alight. I am of the view that the State discharged the onus in so far as appellants 1 and 2 are concerned and the version of appellants 1 and 2 are not reasonably possibly true.

F. DOCTRINE OF COMMON PURPOSE

[68] With regards to appellants 3 and 4, the doctrine of common purpose is applicable.

[69] Did appellants 3 and 4 commit some act of association with the killing and kidnapping of Enoch and Lawrence and intend to associate themselves with the act of appellants 1 and 2?

THE LAW: COMMON PURPOSE

[70] In S v Thebus & Another 2002 (2) SACR 566 (SCA), the Court held that the doctrine of common purpose passed constitutional muster notwithstanding the abolition of causation as a requirement for criminal liability. The Court, per Moseneke J, said at 341 paragraph [34] d–g:

“In our law, ordinarily, in a consequence crime, a causal nexus between the conduct of an accused and the criminal consequence is a prerequisite for criminal liability. The doctrine of common purpose dispenses with the causation requirement. Provided the accused actively associated with the conduct of the perpetrators in the group that caused the death and had the required intention in respect of the unlawful consequence, the accused would be guilty of the offence. The principal object of the doctrine of common purpose is to criminalise collective criminal conduct and thus to satisfy the social ‘need to control crime committed in the course of joint enterprises’. The phenomenon of serious crimes committed by collective individuals, acting in concert, remains a significant societal scourge. In consequence crime such as murder, robbery, malicious damage to property and arson, it is often difficult to prove that the act of each person or of a particular person in the group contributed causally to the criminal result. Such a causal prerequisite for liability would render nugatory and ineffectual the object of the criminal norm of common purpose and make prosecution of collaborative criminal enterprise intractable and ineffectual.”

[71] There must also be some evidence aliunde to lay the foundation of a common purpose before such executive statements can at the end of the case be taken into account. See R v Mayet 1957 (1) SA 492 (A) at 276.

[72] In murder cases there will, in such cases, be a causal connection between the conduct of the immediate party and the death of a victim, and since the conduct of the immediate party is attributed to the remote party, a causal connection between the actual conduct of the remote party and the death of the victim need not be proved. See S v Safatsa & Others 1988 (1) SA 866 (A); S v Sibeko & Another 2004 (2) SACR 22 (SCA); S v Govender & Others 2004 (2) SACR 381 (SCA).

[73] What must be shown is that the act of the remote party fell within the scope of any mandate that existed between that party and the immediate party. In the case of ‘active association’, it must be shown, inter alia, that the remote party was not merely present at the scene but that he committed some act of association and that he intended to associate himself with the act of the immediate party. See S v Le Roux & Others 2010 (2) SACR 11 (SCA) at [17]–[19]; S v Mgedezi & Others 1989 (1) SA 687 (A).

[74] It must also be shown that the requisite mens rea or fault was present in respect of the remote party. The effect of common purpose is to impute the conduct of the immediate party to the remote party. The fault element is not imputed but must be shown to exist in respect of the remote party with reference to his or her own mental state.

[75] In S v Mgedezi & Others 1989 (1) SA 687 (A), Botha JA, at 707H–706B, held that:

“In the absence of proof of a prior agreement, accused No 6, who was not shown to have contributed casually to the killing or wounding of the occupants of room 12, can be held liable for those events, on the basis of the decision in S v Safatsa and Others 1988 (1) SA 868 (A), only if certain prerequisites are satisfied. In the first place, he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the assault on the inmates of room 12. Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others. Fifthly, he must have had the requisite mens rea; so, in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue. (As to the first four requirements, see Whiting 1986 SALF 38 at 39.) In order to secure a conviction against accused No 6, in respect of the counts on which he was charged, the State had to prove all of these prerequisites beyond reasonable doubt. It failed so to prove a single one of them.”

[76] Where a group of persons are involved in the commission of a crime and it cannot be established which of them was the actual perpetrator, the prosecution must rely on the doctrine of common purpose to establish criminal liability.

[77] In the State’s address to Court, counsel for the State when referring to appellant 3, submitted that, “he had a common purpose with the other accused to see to it that both victims in this matter were dealt with whether they die at the end of the day it was not his matter”. He also stated that the same applied to appellant 4. See the record on pages 447–448.

ANALYSIS OF ISSUES IN RESPECT OF APPELLANTS 3 AND 4

[78] In applying the pre-requisites set out in S v Mgedezi & Others supra, to appellant 3, the following is noted:

78.1. Appellant 3 associated himself with appellant 1 from the outset. He drove his vehicle in the company of appellant 1 to Dipompong and kidnapped Lawrence. Appellant 3 was present at the scene when Lawrence was dragged off appellant 3’s vehicle and tied next to Enoch. It was during this time that appellant 3 told the police that they were taking the law into their own hands because they were tired of the deceased being arrested and then released. Appellant 1 remarked that appellant 3 should let the police go so they could discipline the deceased.

78.2. Sandra saw appellant 3 at the scene when both Enoch and Lawrence were tied together immediately before the murders occurred and Lawrence mentioned appellant 3’s name to Sandra. Appellant 3 was also implicated by Lawrence in his verbal and written statement to Constable Mookane.

78.3. Appellant 3 admitted that he was the driver of the vehicle that transported Lawrence from the tavern to where Enoch was tied up.

78.4. There is no evidence that appellants 1 and 3 were hijacked, as alleged. Neither appellant 1 nor 3 informed their respective spouses that they were hijacked or reported this to the police. The Court a quo was correct to reject appellant 3’s version as not being reasonably possibly true.

78.5. Appellant 3, in my view, intended to make common purpose with appellants 1 and 2, which was manifested by his act of association with appellant 1 and by his conduct.

78.6. Appellant 3 foresaw the possibility of Enoch and Lawrence being killed and associated himself with appellants 1 and 2 with recklessness as to whether or not death was to ensue.

[79] The kidnapping and the murder was a continuation of the unlawful act, and there is no evidence that appellant 3 withdrew from or dissociated himself from the common purpose. See Musingadi & Others v S [2004] 4 All SA 274 (SCA).

[80] I am of the view that there is a causal connection between the conduct of appellant 3 and the murder of Enoch and Lawrence. Appellant 3 acted together with appellant 1 to achieve the same purpose and the conduct of appellants 1 and 2 in the execution of the common purpose, namely, the kidnapping and murder of the deceased are imputed to appellant 3.

[81] As for appellant 4, the only evidence against him was the evidence of Monjelele, who identified appellant 4 as being in the company of appellants 1 and 2 and being involved in the kidnapping of Enoch. Appellant 4’s name together with the names of other men was also mentioned by Lawrence to Sandra when she asked him what happened. There is no evidentiary value in this statement as Lawrence did not elaborate on the role and involvement of the persons whose names he mentioned. Further, Constable Mookane, under cross-examination, testified that Lawrence did not mention appellant 4’s name to him. This is also evident from Exhibit “G”.

[82] Applying the rule set out in S v Mgedezi & Others supra to the facts of this case, on the conviction of murder, the following emerge:

82.1. there is evidence that appellant 4 was at the scene where Enoch was kidnapped. On appellant 4’s own version, he went to where the group had gathered, saw Enoch tied, sitting on the ground and then he left. There is no evidence that appellant 4 was present when Lawrence was dragged off the vehicle and tied next to Enoch and when Lawrence and Enoch were doused with petrol and set alight. The first requirement in S v Mgedezi & Others supra, is therefore not met;

82.2. there is also no evidence that appellant 4 was even aware that Enoch and Lawrence were doused with petrol and set alight or that he foresaw that those crimes may be committed and nevertheless pursued the common purpose venture. This issue is only relevant to the issue of culpa, it does not constitute a physical, active association with the conduct which caused the death (or other crimes). Mere intent to commit a crime in the absence of an actus reus (active association in the case of common purpose) is insufficient for criminal liability. The second requirement in S v Mgedezi & Others supra, is also not met;

82.3. the third requirement for liability in terms of S v Mgedezi & Others supra, is that an accused person must have intended to make common cause with those who were actually perpetrating the crime. This means with those whose conduct caused the crimes. For the reasons more fully discussed in S v Safatsa & Others supra and S v Mgedezi & Others supra and mentioned earlier, the association must be with appellants 1, 2 and 3 and not with the general, broad common design of the attacking mob. It accordingly follows from the absence of the first two requirements that the third requirement is also not met;

82.4. the fourth requirement in S v Mgedezi & Others supra, is that the appellant must have manifested his sharing of a common purpose with the perpetrators by himself performing some act of association with the conduct of the others. The ‘conduct of the others’ is a reference to the conduct of those who actually perpetrated the crimes as contemplated by the requirement. Again, by virtue of the absence of the first two requirements, the fourth requirement is not met. Save for having been part of the group that kidnapped Enoch, there is no evidence of any act committed by appellant 4 on the conviction of murder, to manifest his association with appellants 1, 2 and 3.

82.5. further, there is no evidence to suggest that appellant 4 had the necessary mens rea in the form of dolus eventualis, in that he foresaw the death of Enoch and Lawrence and recklessly continued with his association of the attacking mob in general. The fifth requirement in S v Mgedezi & Others supra, is therefore not met.

[83] The Supreme Court of Appeal in Musingadi & Others v S supra recognised a defence of dissociation or withdrawal. Reference is made to the dictum of Gubbay CJ in S v Beahan 1992 (1) SACR 307 (ZS) at 324b–c:

“I respectfully associate myself with what I perceive to be a shared approach, namely, that it is the actual role of the conspirator which should determine the kind of withdrawal necessary to effectively terminate his liability for the commission of the substantive crime. I would venture to state the rule this way: Where a person has merely conspired with others to commit a crime but has not commenced an overt act toward the successful completion of that crime, a withdrawal is effective upon timely and unequivocal notification to the co-conspirators of the decision to abandon the common unlawful purpose. Where, however, there has been participation in a more substantial manner something further than a communication to the co-conspirators of the intention to dissociate is necessary. A reasonable effort to nullify or frustrate the effect of his contribution is required. To the extent, therefore, that the principle enunciated in R v Chinyerere (supra at 579B and 578E) is at variance, I would with all deference, depart from it.”

[84] The Court in Musingadi & Others v S supra at paragraph 33, page 285 considered whether the common purpose to rob was expanded, as events progressed, so as to include a common purpose to murder and if the answer is in the affirmative, whether the appellants effectively dissociated themselves from the expanded common purpose.

[85] In casu, as stated supra, appellant 4 was only identified at the scene where Enoch was kidnapped. There is no evidence to suggest that the common purpose to kidnap Enoch expanded to include a common purpose to commit murder and kidnap Lawrence. The circumstances accordingly do no warrant a dissociation or withdrawal by appellant 4 as there was no common purpose to commit murder or kidnap Lawrence.

[86] In the Musingadi & Others v S case supra, the appellants were aware that the robbery was developing into a murder. In casu there is no evidence that appellant 4 was aware that a consequence of kidnapping Enoch will result in the murder of the deceased.

[87] Accordingly, I am of the view, that the requirements for criminal liability for murder under the common purpose rule are not met on the facts of this case. On the evidence before this Court, the common purpose did not extend to murder of the deceased or the kidnapping of Lawrence. I therefore believe, with respect, that to the extent that the Court a quo failed to apply the principles as set out supra, that it has misdirected himself in so far as the conviction of appellant 4 for murder of the two deceased and kidnapping of Lawrence is concerned.

[88] It follows, in my respectful view, that the appeal, only in so far as appellant 4, for murder of both deceased and kidnapping of Lawrence is concerned, should succeed, that the appeal on conviction of appellants 1, 2 and 3 for murder and kidnapping be dismissed and that the appeal on conviction of appellant 4 for kidnapping of Enoch be dismissed.

G. SENTENCE

[89] The sentences imposed on the first, second and third appellants, namely, life imprisonment on each of the murder counts, are punishable with a minimum sentence of life imprisonment, unless there are substantial and compelling circumstances justifying a lesser sentence.

[90] The trial Court was guided by the guidelines set down by the Supreme Court of Appeal in S v Malgas [2000] ZASCA 156; 2001 (1) SA 1222 (SCA).

[91] The Supreme Court of Appeal in S v Malgas supra, at paragraph [25] at 1235F–36C determined the manner in which the question whether substantial and compelling circumstances exist and held that ‘all factors traditionally taken into account in sentencing continue to play a role; none is excluded at the outset, from consideration in the sentencing process. The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick (‘substantial and compelling’) and must be such as cumulatively justify a departure from the standardized response that the legislature has ordained . . . at paragraph [25] at 1236C–E/F, if the sentencing court on consideration of the circumstances of the particular case is satisfied that they rendered the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence.

[92] The trial Court correctly considered the cumulative effect of all the mitigating circumstances which are favourable to the appellants, which attract mercy and a lesser sentence. The Court also undertook a balancing exercise and measured the weight of the mitigating factors against the weight of the aggravating features. The Court considered the effect of alcohol on the conduct of the appellants. The Court also considered the following aggravating factors:

92.1. the amount of planning and the collection of the necessary implements, including petrol, the tyre and the place specifically chosen, out of the village where the deceased were killed;

92.2. the method of killing, which was most brutal and shocking, the traditionally so-called necklace murder;

92.3. the fact that the deceased were killed in the presence of the police, who were treated with disrespect and disregard.

[93] It is trite that the imposition of a sentence is a matter for the discretion of the Court tasked with imposing same. A court of appeal will generally only interfere with the sentence imposed by a lower court in circumstances where the reasoning of the trial court is vitiated by misdirection or where the sentence imposed is startlingly inappropriate and induces a sense of shock or where there is a striking disparity between the sentence imposed and that which a Court of appeal would impose. See S v Kgosimore 1999 (2) SACR 238 (SCA) at 241G–H, where the Court held that the true enquiry is:

“. . . whether there was a proper and reasonable exercise of the discretion bestowed upon the court imposing sentence. . . . Either the discretion was properly and reasonably exercised or it was not. If it was, a court of appeal has no power to interfere, if it was not, it is free to do so.”

[94] The discretion referred to in the Supreme Court of Appeal in S v Malgas supra allows the Court to interfere with the sentence imposed where it has been shown that the exercise of the discretion of the trial court has not been properly exercised.

[95] I am of the view that the trial court had properly and reasonably exercised its discretion in imposing two life sentences, and that there are no substantial and compelling circumstances to warrant the imposition of a sentence below the minimum sentence.

[96] In so far as the sentence imposed on all the appellants for kidnapping is concerned, I have had regard to the triad as set out in S v Zinn 1969 (2) SA 537 (A) and taken cognisance of the recognised objectives of sentencing, namely, punishment, deterrence, retribution and rehabilitation, and I am of the view that the sentence imposed by the trial court was fair and justified in the circumstances and there exists no ground to interfere with the sentence imposed.

H. ORDER

[97] I accordingly make the following order:

1. In respect of appellants 1, 2 and 3

The appeal on conviction and sentence on counts 1, 2, 3 and 4, namely, the murder of Enoch Frans Morwati, the murder of Lawrence Rantwane Mpoleleng, the kidnapping of Enoch Frans Morwati and the kidnapping of Lawrence Rantwane Mpoleleng, is dismissed.

2. In respect of appellant 4

a) The appeal on conviction and sentence on counts 1 and 2, namely, the murder of Enoch Frans Morwati and Lawrence Rantwane Mpoleleng and count 4 the kidnapping of Lawrence Rantwane Mpoleleng succeeds and is set aside.

b) The appeal against conviction and sentence on count 3, the kidnapping of Enoch Frans Morwati is dismissed.

_________________

N. GUTTA

JUDGE OF THE HIGH COURT

I agree

_________________

M.M. LEEUW

JUDGE PRESIDENT OF THE HIGH COURT

I agree

_________________

T.D. BRENNER

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 02 MARCH 2012

DATE OF JUDGMENT : 03 MAY 2012

COUNSEL FOR APPELLANTS : ADV N. MOLOBEDI

COUNSEL FOR RESPONDENT : ADV G.S. MAEMA

ATTORNEYS FOR APPELLANTS : S.M. MOOKELETSI ATTORNEYS

(Instructed by NTIMANE ATTORNEYS)

ATTORNEYS FOR RESPONDENT : DIRECTOR OF PUBLIC PROSECUTIONS

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