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S v Kgoloko (34/91) [1991] ZASCA 74 (30 May 1991)

.RTF of original document

CG CASE NO: 34/91

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:

MAHLAGAUME DAVID KGOLOKO Appellant

and

THE STATE Respondent

CORAM: CORBETT CJ, MILNE et FRIEDMAN JJA HEARD: 17 MAY 1991 DELIVERED: 30 MAY 1991

JUDGMENT FRIEDMAN JA

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On the morning of 5 April 1988 Ezekiel Charles Mokone (the deceased), who lived alone in the small village of Madibong at Sekhukune in Lebowa, was found dead outside his house. It is common cause that he had been murdered. Constable Matlaila who, as a result of a report received by the Lebowa police, arrived at the deceased's house between 9 and 10 am on 5 April 1988, testified that the windows of the deceased's house had been smashed and that inside, the house was in disarray. He found a trail of blood leading from inside the house to where he found the deceased's body lying in a pool of blood outside the house.
The appellant, who was a resident of the village, was charged before Curlewis J and two assessors in the East and South-Eastern Circuit of the Transvaal Provincial Division, with the murder of the deceased and with robbing the deceased of a wrist watch. The robbery was alleged to have been accompanied by aggravating

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circumstances. Appellant pleaded not guilty to both charges. He was, however, found guilty as charged. The verdict was reached by a majority consisting of the trial Judge and one of the assessors; the second assessor dissented. The court found no extenuating circumstances. Appellant was accordingly sentenced to death for the murder; for the robbery hé was sentenced to 10 years' imprisonment. With the leave of the trial Judge he now appeals to this Court against his conviction on both charges and against the death sentence on the murder charge.
The main witness for the State was one Matsebe Jim Kgoloko (Kgoloko). He was apparently a person of some authority in the village: he would sit outside his house where residents of the village would approach him with their problems which he would then convey to the chieftain. At approximately 6 am on the morning on which the deceased was found murdered, while Kgoloko was

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sitting outside his house waiting for villagers to call on him, he saw appellant approaching. Appellant was proceeding in the direction of his (appellant's) home. Appellant stopped and enguired whether he would like to purchase a watch. Kgoloko told appellant he could not purchase the watch as he had no money. As appellant held out his left arm in order to show Kgoloko the watch, Kgoloko noticed that there were a number of large blood stains on the khaki shirt which appellant was wearing. These stains appeared to be fresh.
When appellant was arrested by Sergeant Chipu on 19 April 1988, he had a wrist watch in his possession. The deceased's son, Silas Mokone, identified this watch, which was handed in as exhibit 1 at the trial, as the one he had given the deceased some nine years before. Kgoloko also testified that the exhibit was the watch which appellant had offered to sell to him on the morning of 5 April 1988.

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Appellant testified in his defence. He denied all knowledge of the murder and the robbery. He stated that he had picked up the watch at a bus stop on 2 or 3 March 1988. He denied that he had offered to sell it to Kgoloko on the morning of 5 April 1988; he stated that a few days after he had found the watch, Kgoloko came to his house looking for beer. Kgoloko saw the wátch and enguired whether appellant wished to sell it. Appellant answered affirmatively, but the transaction was not concluded as Kgoloko did not have sufficient money. When asked why Kgoloko should have made false allegations against him, appellant stated that Kgoloko hated him because of a family feud dating back to a time when appellant was very young. (Appellant is now 35 years of age.) The feud arose from the fact that the woman with whom Kgoloko was living, had killed appellant's father. These allegations were denied by Kgoloko. With regard to the night of 4th/5th April 1988, appellant testified that

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he had been at home with his mother and sister. He did
not, however, call his mother as a witness despite the
fact that she was present at the trial.

The trial court found appellant to be an

unsatisfactory witness. Kgoloko, cm the other hand, was
found to be an excellent witness. In his judgment
Curlewis J, having summarised the evidence, stated the
finding of the majority of the court as follows:

"The matter in my opinion and the opinion of one of my assessors is very simple. The witness, the old man (Kgoloko), was an excellent witness, he gave his evidence well, there was nothing that we could see that caused him any difficulty, confusion, hesitation. It was a very simple story in the sense that it . did not seem to us to bear the imprint of being made up. The accused on the other hand was a bad witness, he is not convincing, he contradicted himself, he was evasive."

The learned Judge added:

"We accept the blood that was described as fresh by this elderly person who was there. It is quite clear that he had come from the deceased's house and in our view the only explanation, the only inference to be drawn is

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that he is the person who went in to this old man's place, while he was sleeping, bludgeoned him to death, there was obviously a struggle, and left the old man for dead outside and then went off with the watch, whatever else he took I do not know."

The view of the dissenting assessor was expressed by

Curlewis J as follows:

"My other assessor does not agree, he does accept the evidence of the old man that I have referred to but he says that even so he finds that that is insufficient taking everything into account and bearing in mind the safeguards that should apply in a case of this nature with a single witness. He does not feel that there is sufficient, beyond reasonable doubt whatever he may think otherwise, he does not feel that beyond reasonable doubt the guilt of the accused has been established."

With respect to the learned Judge, the matter

is not entirely "simple". There are a number of
unsatisfactory features about the State case. The
summary of substantial facts in terms of sec 144(3)(a) of
Act 51 of 1977 contains the following paragraphs:

"2. The deceased was heard crying for help. 3. After the incident the accused was seen

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approaching from the direction of the deceased's house and his clothes were blood stained. 4. Thereafter the deceased was discovered dead and some of his belongings, inter alia, a Rotary wrist watch, were found to be missing."

No evidence was led in support of paragraph 2:

there was no evidence as to when the deceased was heard
to cry for help or how that tied in with the time when
Kgoloko saw appellant approaching. With regard to
paragraph 3, the only evidence led on behalf of the State
was that of Kgoloko. Kgoloko was a reluctant witness.
On two occasions the trial could not commence because he
would not come to court. The investigating officer told
the court that:

"Hy is opgespoor, maar hy wou nie hiernatoe kom nie en toe ons hier moet kom gaan kruip hy weg."

Kgoloko eventually came to court, but only after a

warrant for his arrest had been issued. As appears from

the extract from his evidence quoted below, he did not

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testify in chief along the lines which the State
apparently expected. It would appear that the State was
expecting him to testify (as stated in paragraph 2 of the
summary) that he saw appellant approaching from the
direction of the deceased's house, which would have
strengthened the State case considerably, but he was not
prepared to testify to that effect. His evidence in
chief on this aspect, reads as follows:

"MNR. BRINK: Op die pggend van 5 April 1988
teen ongeveer sesuur was u daar in die straat
naby die oorledene se huis, is dit korrek? --
Nee, ek het nie tot, ek het nie daar gearriveer
nie, dit was die voorman en ook sy polisieman

wat soontoe gegaan het na die oorledene se plek
toe.

Goed, vertel nou net vir die hof, u was daar by
die huis die oggend, is dit korrek? -- Ek was

by my huis ja.
Wat het u daar gesien? -- Die beskuldigde het
daar by my aangekom, hy het so van die berg se

rigting af gekom, hy het daar afgestap en op
pad na sy huis toe het ek toe gesien dat hy die

horlosie by hom gehad het.

Kom ons probeer dit op h ander manier. U weet
op watter dag die oorledene dood is, watter dag
sy lyk aangetref is, is dit korrek? U het
gehoor op die dag die oorledene is dood, is dit
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reg? — Ek het gehoor ja.

Het u daardie dag vir die beskuldigde gesien? -

- Ja, ek het hom gesien.

Nou vertel vir die hof wanneer was dit, die

oggend, die middag, die aand?

HOF: Vroeg oggend? — Dit was vroeg in die

oggend ja.

MNR. BRINK: Ja, waar was hy toe u hom gesien
het? — Hy het so van 'n rant af gestap op pad

na sy huis toe.

Was dit nou naby die oorledene se huis of naby
u huis of waar was dit? -- Nee, dit was ver van

die oorledene se huis af.

Hoe ver, kan u vir die hof se? -- Dit is 'n hele

ent ver, dit is anderkant van die stat."

What emerges from this extract from his evidence is that
Kgoloko was not prepared to testify that appellant was
approaching from the direction of the deceased's house,
as stated in paragraph 3 of the summary. The finding of
the trial court that "It is quite clear that he had come
from the deceased's house", was therefore a misdirection.

I also find it somewhat improbable that Kgoloko

would not have enquired as to the blood stains on
appellant's shirt sleeve. Kgoloko clearly saw these were

large, fresh blood stains but he did not consider it

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necessary to ask appellant about them. His evidence
reads as follows:

"MNR. BRINK: Het u met die beskuldigde
gepraat? — Ek het hom niks gevra oor die bloed

nie.

HOF: Hoekom? — Ek het nie geslaag om te vra

nie, ek het hom nie gevra nie."

Kgoloko and appellant are distantly related. Possibly Kgoloko might not have wished to incriminate appellant, but that is a matter of speculation.

There is a serious lacuna in the State case in

regard to the deceased's watch. Although Silas Mokone
testified that the watch which was found in appellant's
possession on 19 April was the watch he had given his
late father, this evidence also contains gaps which, for
reasons which are not apparent, the State made no attempt
to fill. Silas Mokone was asked:

"Se vir die Hof, het u vader die horlosie gedra?"

to which he replied:

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"Dit is korrek." The matter was left there. Silas Mokone was not asked when he last saw the deceased wearing the watch or, more importantly, whether deceased had the watch shortly before his death. The evidence concerning appellant's possession of the watch was vital to the State case. Had the State established that the deceased was wearing the watch shortly before his death, appellant's version that he had picked the watch up at least a month before the murder would have been proved conclusively to be false. Of course, until appellant testified, the State did not know how he would explain his possession of the watch. However, when it became apparent what appellant's defence was, no attempt was made by the State to re-open its case to contradict appellant's evidence of having been in possession of the watch from as far back as 2 or 3 March, nor did the court recall Silas Mokone to clarify this point. The matter was merely left in the air.

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A further aspect concerning the watch which was not satisfacorily dealt with, was the identification by Silas Mokone. He was asked whether he knew the watch and he said that he recognised it: it was the watch which he had bought f or his late f ather in 1979. The only question put to him in chief as to identification was: "waaraan herken u die horlosie?" to which he replied: "ek herken dit aan die belt en ook die naam van die horlosie". No questions were put to him in cross-examination; nor did the court ask him to elaborate on his identification. Kgoloko's statement in chief, namely "Dit (exh 1 ) is die horlosie wat hy my gewys het", was also not taken any further, either by State, or defence counsel or the court.
According to paragraph 4 of the summary, "some of his (deceased's) belongings, inter alia, a Rotary wrist watch, were found to be missing". There was no evidence as to when the watch went missing. Nor was

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there any evidence as to the other "belongings" of the deceased that were found to be missing. Appellant was, in the indictment, charged with robbing the deceased of only the watch. If appellant was the one who stole the watch, he would presumably have stolen the other items and would have had these in his possession when he was seen by Kgoioko. This issue was, however, also left in the air; no attempt was made to canvass it.
Mr Pienaar, who appeared for the State, argued that the State was not bound by the summary. That is so. The State cannot be precluded from leading evidence which contradicts the summary. See S v VAN VUUREN 1983 (1) SA 12 (A) at 21. There is, however, no reason why a court should not, in assessing the weight to be attached to the State case, compare the evidence actually led, with the summary of what the State intimated it intended to prove. In casu such a comparison reveals that the case actually presented by the State was clearly weaker than what it

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stated, in the summary, that its case would be. No
attempt was made to explain the inconsistencies between

the evidence and the summary; once again the matter was

left in the air.

Kgoloko was, moreover a single witness on the

vital issues of appellant's alleged possession of the
watch very soon after the murder and of the fresh blood

stains on his shirt sleeve. The approach which a trial
judge should adopt in regard to the assessment of a
single witness was stated as follows in S v SAULS AND
OTHERS 1981 (3) SA 173 (A) at 180 F:

"The trial Judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told."

In the judgment of the trial court none of the

shortcomings in Kgoloko's evidence, referred to above,
were dealt with.

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It does not follow from the finding of the trial Court that appellant was not a credible or impressive witness, that the State case has been proved beyond reasonable doubt. In fact the State case is so fragmentary and leaves so many vítal questions unresolved, that I do think a finding that appellant's guilt has been established beyond reasonable doubt, can be sustained.
The appeal is upheld and the convictions and sentences are set aside.

FRIEDMAN JA CONCUR:

CORBETT CJ MILNE JA