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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CAF 02/2015

In the matter between:

MPHO ROBINSON TSHIKI                                                               Appellant

AND

THE STATE                                                                                   Respondent

 

FULL BENCH CRIMINAL APPEAL

KGOELE J, GUTTA J & DJAJE J

DATE OF HEARING: 08 DECEMBER 2017

DATE OF JUDGMENT: 01 FEBRUARY 2018

COUNSEL FOR APPELLANT: Adv. Ramaidi

COUNSEL FOR RESPONDENT: Adv. Mooketsi

 

JUDGMENT

 

[1] The appellant and former accused 1 were convicted of Murder, Robbery with aggravating circumstances, unlawful possession of a firearm and ammunition at the Circuit Court of this Division sitting at Ga-Rankuwa.  They were sentenced to life imprisonment for Murder, fifteen (15) years imprisonment for Robbery, three (3) years imprisonment for possession of a firearm, and two (2) years imprisonment for possession of ammunition.  The appellant applied for leave to appeal his conviction and was granted same by the Court a quo, hence this Appeal.

[2] The factual allegations which the appellant and former accused 1 faced were to the effect that on the 31 August 2006 at Mabopane, they unlawfully shot and killed one Matthews Motsepe and robbed him of his property.   Appellant and former accused 1 pleaded not guilty to all the charges they were facing.  The evidence that was presented before the Court a quo was that the deceased walked to a shop on that particular night intending to buy some articles there.  Some ladies whom he was sitting with, had also given him two empty bottles of cold drinks to bring them one.  After ten minutes of his departure, they heard two gunshots at the direction of the shop.

[3] One of them dialed the deceased number as they became suspicious, but there was no answer. They managed to report to a police officer whose house was third from the place where they were.  They, together with the police officer, found the body of the deceased lying in the street lifeless and bleeding. It was also discovered that his cellphone including his money were missing. The empty bottles of cold drinks were found lying next to him.

[4] The evidence before Court also reveals that on the same night of the incident, former accused 1 was seen in possession of the missing cellphone of the deceased, because he gave it to one Tebogo who is his neighbour who instead gave it to his younger sister. A cellphone print-out from the relevant service provider showed that it was used after the death of the deceased.

[5] Several other witnesses gave evidence.  The evidence of Pinki and Tebogo Mngubeni, who are both the neighbours of former accused 1 placed him on the scene of crime.  I will not deal with their evidence because former accused 1 did not deny being at the scene when the incident happened but instead told the Court that appellant is the one who committed the robbery.  There is also evidence to the effect that some years after the deceased was killed, detectives went to former accused 1’s parental home when they were busy investigating a different case.  After searching the house, they found a firearm hidden between the mattress and the base.  Forensic Science evidence revealed that this was the firearm which was used to kill the deceased.

[5] Molebogeng Gumbu also testified that appellant is her former lover and former accused 1 is a friend to appellant.  Around 2006 when she went out of her room, she saw appellant giving accused 1 something which he was hiding.  Later, appellant then told her that he had given former accused 1 a firearm.  When appellant told her this, it was at the time when she was with appellant walking to work, Morula Sun, where both of them were employed.  This evidence of Molebogeng was not denied under cross-examination.

[6] Captain Tlhapi’s evidence deals with how he managed to break through the evidence in this case after an expiration of two years.  This includes how the firearm was retrieved, the cellphone records, the forensic testing of a firearm, the results thereof and the arrest of the appellant and former accused 1. His evidence also included an interview with former accused 1 wherein accused 1 made some admissions to him about how the deceased was killed.  Further that, he did not arrest former accused 1 immediately after this interview, but asked him to assist him to trace appellant. Captain Tlhapi even informed his parents about this, but he was surprised by the fact that former accused 1 disappeared for some time until he arrested him.

[7] I will not deal with the contents of what former accused 1 told the Captain as to how the deceased was killed for fear of repetition, because the contents are almost the same as what former accused 1 testified about.  Secondly, the contents, although according to the Captain were not reduced down to writing by him, were not disputed in cross-examination.  The contents of the admission differs slightly with the evidence under oath of former accused 1, but the differences are insignificant and immaterial.

[8] The gist of the testimony of former accused 1 summarized is to the effect that appellant, who is an old friend of his, came to his place on the day of this incident and requested former accused 1 to accompany him to collect his money from a certain man who owes him (appellant).  On the way, the appellant pointed to the man they were going to collect his money from.  He stopped walking when appellant started talking to this man.  When it became apparent that they were quarelling, they were at the same time walking slowly away from him.

[9] About eleven paces away from him, when they were a distance away from him, he heard a gunshot.  The gunshot was actually coming from the direction of appellant and the man.  Because he was so frightened, and he did not know who was shot, he ran back to his home.  Arriving at his place he sat down on the stoep, asking himself many questions as to what happened, because when he went out with his friend, he never expected anything like that, and was not even aware that anyone of them had a firearm.  As he was sitting there pondering what to do, appellant arrived and he was angry.

[10] Appellant asked him, why he ran away.  He accused him of being a “sny”, meaning that he was either a coward or a stupid.  He told him that he ran away because of the gunshot, for he did not know who was shooting who.  Appellant produced a cellphone and money claiming that he got it from the deceased.  He then offered the cellphone to him.  When appellant realized that he was a bit reluctant to receive this particular cellphone, he fired a shot in the air, threatening to kill him because he was a “sny”.  He testified that because of this threat, he decided to take the cellphone, not knowing that it was the deceased’s cellphone. 

[11] They both went to his house and whilst sitting he thought of a way of running away from appellant who was angry and wielding a firearm.   He finally requested him to go to the toilet.  He allowed him, and when he went out of the house, he jumped over the wall into Tebogo’s yard.  Fortunately when he landed on the ground in Tebogo’s yard, Tebogo was there.  He briefed him about what happened.

[12] Tebogo advised him to report to his brother and rather tell him about this problem he had, but former accused 1 refused.  He indicated to him that he cannot go back to his yard fearing that appellant may injure him.  He then gave Tebogo the cellphone which he had received from appellant.  He gave it to him as a present. He went away leaving his home, not knowing where he was going to. He eventually went to stay at his cousin’s place.  About some weeks later he came back to his place of residence and he did not find appellant at his place.

[13] He testified further that, during the period when he was away, he was staying at Leeufontein. He related to the Court about an incident on one of the days when appellant came to his shack during the night and found him sleeping with his lover. The appellant did not enter through the gate, but jumped over the wall, just opened the house without knocking and he was very angry.  He told them that he wanted his firearm.  He ordered them out of the bed and started searching the bed saying, “I am looking for my firearm”.  When he could not find it, he assaulted former accused 1.  Because he could not find the firearm, he took him away saying that, he was going to kill him.  He however released him later without harming him. He then called his former lover to testify on his behalf.  His former lover confirmed that at some stage whilst they were sleeping, appellant arrived and threatened former accused 1, looking for the firearm.  She says this was around 2007.  She further confirmed the evidence of former accused 1 that he, appellant, assaulted her boyfriend during that particular night.

[14] The evidence of appellant was basically that he never saw former accused 1 on the night when the deceased was killed, and he was never at former accused 1’s place.  He never gave former accused 1 any cellphone.  He never showed him any money which allegedly was taken from the deceased, never threatened to shoot former accused 1 or called him a “sny”.   He said if former accused 1 killed the deceased, it was him alone, or with someone else whom he did not know.  He did not kill the deceased and he was not part of this plan.  He however confirmed that they knew each other since around 2006/2007.  They were very close acquaintances.  He was his trainer, and time and again he would visit former accused 1 who was his student in the martial art. He indicated that sometime during the training, he had to dismiss former accused 1 from the training, because he had befriended himself with intoxicating liquor, something which is not allowed in this martial art.  Appellant further testified that on the date in which the deceased was killed, he was at work.  He started working at about 16h00 on that particular afternoon, and he knocked off at 2h00 in the morning.

[15] During cross-examination, a printout from the Security Department of Morula Sun was produced and canvassed with appellant.  This document monitors the movements of every worker of Morula Sun, from the time he/she enters the main gate, every movement inside the building until he knocks off.  According to this particular printout, appellant entered the gate of Morula Sun at five minutes to ten on 31 August 2006 (9:55 in the morning). He knocked off on the very same day at six minutes past six (18h06).  Appellant conceded that that was his movements on the date in question, and further that he was not on duty during the night when the deceased was killed.

[16] When he was asked to account why he initially said he was at work during that night, he pointed out that this incident happened more than four years ago, and he may have forgotten where he was on that particular evening.  He was then asked to explain where he was on the night of the incident, and he indicated that he was with his lover at their room.  He could not have left her because she was afraid to remain alone during the night.

[17] It was contended on behalf of the appellant as the first ground of Appeal that the Court a quo erred when it refused to discharge the appellant in terms of Section 174 of the Criminal Procedure Act 51 of 1977 (CPA).

[18] Expanding on this ground, the appellant’s Counsel submitted that the State conceded to the fact that at the close of its case it had not led any evidence which suggests that the appellant had a role to play in the commission of the offences in question.  Further that, the Court also accepted this concession.  However, despite this concession the Court dismissed the application for discharge of the appellant in terms of the Section 174, stating that the appellant was implicated by the cross-examination of his co-accused and might be implicated by the evidence of his co-accused.  This, he argued, is the basis for the submission that the Court a quo erred by dismissing the application and failing to discharge the appellant.

[19] The respondent’s Counsel, Advocate Mooketsi, on the contrary, submitted that it is not correct that the State made a concession that there is no evidence implicating the appellant in the commission of the offence.  He argued that while the Court a quo was of the view that the State did not lead any evidence which implicate the appellant, the Court a quo considered that it was put to Captain Tlhapi that former accused 1 indicated in his cross-examination that  it was the appellant who shot the deceased.  The Court a quo could not have ignored this assertion and this is the reason why the Court a quo dismissed the application of the appellant in terms of Section 174.

[20] I fully agree with the submission by the Counsel for the respondent that the Court a quo dismissed the application for discharge of the appellant because of the reason that appellant was implicated by cross-examination of former accused 1.  In addition, the record of proceedings reveals that the Court a quo, after taking into consideration the interests of justice, it exercised its discretion to refuse the application by the appellant.  The Supreme Court of Appeal case of S v Lubaxa 2001 (2) SACR 703 (SCA), which the appellant’s legal representative heavily relied upon, finally settled the law in as far as the test that need to be applied as far as the application of Section 174 of the CPA is concerned. A thorough analysis of the proceeding in casu reveals that there is no misdirection on the part of the Court a quo in exercising its discretion to refuse to discharge the appellant in terms of Section 174 of the CPA.

[21] The second ground of Appeal was premised on the submission that the Court a quo erred when it made a finding that the State had proved its case beyond reasonable doubt and thereby rejecting the evidence of the appellant.

[22] Advocate Ramaili submitted on behalf of the appellant that the Court a quo convicted the appellant on the evidence of his co-accused whom it referred to as an accomplice.  The evidence of this co-accused needs to be treated with caution.  The Court a quo applied the cautionary rule, labelling the appellant’s co-accused as a person who is trying to exonerate himself and thereby largely rejecting his version for various reasons.

[23] He cited the following in support of this submission:-

· Former accused 1 put it to Captain Tlhapi under cross-examination that he never absconded from his home but he had gone to Groblersdal with the appellant to look for work. It was further put to Captain Tlhapi that appellant could not call him because he was afraid of appellant and that he did not disclose what he saw about the incident.  He further testified that immediately after the incident, appellant came to his place of residence and fired a shot in the air threatening to shoot him and he later ran away. In rejecting former accused 1’s evidence the Court a quo found that it is highly improbable that former accused 1 could have gone with appellant to Groblersdal if indeed appellant wanted to kill him;

· The Court a quo rejected the evidence of former accused 1 and his girlfriend that there was a shooting at his parental home and that appellant tried to kill former accused 1;

· The Court a quo found that former accused 1 implicated appellant to save himself in particular, following his behavior after the shooting.  He never told anyone, not even his parents or Tebogo or Police, despite his shock;

· The Court a quo further found that it was improbable that appellant had placed the firearm at former accused 1’s shack.  The Court a quo rejected and found the evidence of former accused 1 to be tainted with untruthfulness and therefore improbable at large;

· The Court a quo found appellant as dishonest and unreliable.  It found the version of former accused 1 improbable and tainted with contradictions.

· According to Advocate Ramaili, the Court erred by convicting appellant.

[24] In addition, Advocate Ramaili submitted that the Court a quo failed to apply the same test to the evidence of the State, in particular, the evidence of Captain Tlhapi and that of appellant during the evaluation thereof.  Captain Tlhapi testified under cross-examination that he interviewed appellant’s co-accused and did not reduce same into writing and only reduced same into writing after four years.  He conceded that he might have forgotten some parts of the interview as the incident took place a long time ago.  The appellant also gave evidence under oath raising an alibi defense.  However, it transpired the alibi was not true. The appellant conceded that he might have been mistaken as the incident took place in 2006 and he only testified in 2013. The Court rejected this evidence whereas it accepted that of Tlhapi.

[25] Advocate Mooketsi submitted in reply to the above submissions that the Court a quo did not only consider the evidence of former accused 1 in convicting appellant. He argued that the Court a quo found that there was independent evidence, which suggested that appellant had a finger in the pie in the killing of the deceased. His former lover testified that one day when she and appellant were going to work at Morula Sun, she saw appellant giving former accused 1 something. The appellant later told her that he was giving former accused 1 a firearm. Former accused 1’s lover also testified that at some point the appellant came to their shack furiously looking for the said firearm.  The appellant searched for the firearm under the bed on which she and former accused 1 were sleeping.

[26] He lastly submitted that the Court a quo found that former accused 1 had lied under certain aspects and it did not accept such evidence.  However, the Court a quo did not wholly reject his evidence as part of it was corroborated by his former lover who stated that at some stage the appellant came to accused 1’s shack looking for the said firearm.  He urged this Court to find that there are no grounds that exists for this Court to interfere with conviction.  The Appeal must be dismissed.

[27] A thorough analysis of the record of proceedings and the judgment of the Court a quo does not reveal any aorta of misdirection on its part when evaluating the evidence before it.  Instead, it reveals that the Court a quo was alive to the cautionary rule applicable to the evidence of former accused 1.  It further reveals that the Court a quo did not rely on the evidence of former accused 1 only in convicting the appellant.  It must be emphasized that the appellant’s defense was an alibi which alibi was disproved by the evidence on behalf of the State.  The evidence proved that he was not at work as he initially contended, which evidence he conceded to when he was confronted with it.  Of significance about this evidence is that it amounts to other independent evidence which lend credence to the evidence of former accused 1 that he was with him at the time of the commission of the offence.  The cautionery rule was therefore satisfied.

[28] The principle which has been adopted by the Appellate Court in dealing with a finding of fact by a trial judge has been settled long time ago in the case of R v Dhlumayo and Another 1948 (2) SA 677 (A).

[29] I fully agree with the respondent’s Counsel that there are no grounds that exist which warrants this Court to interfere with the conviction by the Court a quo.

[30] Consequently the following order is made:-

30.1 The appeal is dismissed.

 

 

                                     

A.M. KGOELE

JUDGE OF THE HIGH COURT

 

 

I agree

 

 

                            

N. GUTTA

JUDGE OF THE HIGH COURT

 

 

I agree

 

 

                            

T J DJAJE

JUDGE OF THE HIGH COURT

 

 

ATTORNEYS

FOR APPELLANT: T N Ramollo Attorneys

C/O Ntsamai Attorneys

Office 2. Merlite Building

Cnr Warren & Shippard Street

MAHIKENG

FOR RESPONDENT: Director of Public Prosecutions

2^nd Floor, Megacity Complex

Cnr Sekame Street

MMABATHO

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