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Kekana and Another v S (CA&R 58/2021) [2021] ZAECGHC 81 (7 September 2021)

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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

                                                                                                CASE NO. CA&R 58/2021

In the matter between:

THEMBANI KEKANA                                                                               1ST Appellant

XOLANI CHRIS MAKANDA                                                                    2ND Appellant

and

THE STATE                                                                                                 Respondent

JUDGMENT

GQAMANA J:

[1]       In the early hours on 16 April 2016, the deceased’s life (Mr Siphiwo Shoba) was abruptly shattered in a brutal manner.  His death remained a mystery with no one arrested and held accountable for a considerable period.  Approximately seventeen months thereafter, the deceased’s uncle, Mr Shoba unearthed evidence that resulted to the arrest and prosecution of the appellants.  The appellants were arraigned in the Regional Court, Makhanda (“the trial court”) for the murder and robbery of the deceased.  Asserting their innocence, both appellants pleaded not guilty and put up an alibi as their defence. The trial court convicted them as charged.  They were sentenced to life imprisonment for murder and 15 years’ imprisonment for robbery.  Disenchanted with such conviction and sentence, the appellants appealed to this court with the leave of the trial court.

[2]       The issues in this appeal are; firstly, whether the State had proved beyond reasonable doubt that the appellants were at the scene of the crime when the deceased was fatally stabbed to death by unknown persons and were involved in the murder and robbery of the deceased and, secondly whether the sentence imposed was appropriate.

[3]       The relevant facts which gave rise to the appellants’ conviction are the following.  On this fateful night, the deceased and his friend Mr Moya, had a social outing at Kulati’s tavern where alcohol was consumed.  Realising of the late hour of the day, they left the tavern enroute home by foot.  On their journey home they were accosted from behind by three or four unknown men (“the assailants”) and some of these assailants were armed with swords /bayonet type of weapons.  The assailants approached the deceased and Mr Moya from the front and their faces were covered.[1]  Two of these assailants immediately approached Mr Moya and the other two went to the deceased.  Without uttering a word or making any demand, the two assailants that approached Mr Moya started to stab at him targeting his neck, but he successfully blocked the blow off using his arms.  He was stabbed in the shoulder area.[2]  Because he was fending for himself he could not see on what was happening to the deceased.  On the first available opportunity to save his life, he ran and sought assistance at the nearby neighbourhood.  As he was running and shouting for assistance, he shouted for one Chwayita Phakamisa.  While being chased by one of the two assailants that were attacking him, he threw his cellphone to this person.  He managed to receive assistance at house no 16D.  The area where they were attack occurred was dark.  Due to the darkness of the area, the fact that the assailants had covered their faces and that they attacked him unexpectedly, he was unable to identify the assailants.

[4]       For purposes of placing the appellants on the scene and on commission of these offences, the State presented the evidence of Mr Noqayi (“Noqayi”).[3]  This witness was warned in terms of the provisions of s 204 of the Criminal Procedure Act 77 of 1977.  His evidence was that, on this fateful night the appellants and him were drinking at Bluetooth tavern.  While they were standing outside the tavern, they noticed the deceased and Mr Moya walking in the street.  Without discussing anything, they followed them with the intention to rob them and that was their modus operandi.  They followed them from behind but at some stage, he separated from the appellants and ran around in order to corner the deceased and Mr Moya.  He approached them from the front and the appellants approached them from behind.  The appellants were each armed with a half side of a scissor that is generally meant to shear sheep.  First appellant approached the deceased and the second appellant approached Mr Moya.  When he and the appellants accosted the deceased and Mr Moya, their faces were uncovered contrary to Mr Moya’s evidence.  Noticing that the deceased was cornered by the first appellant, he went to assist the second appellant because he could see that Mr Moya was about to escape and run away.  He was not armed.  He saw the first appellant stabbing the deceased.  As he was approaching Mr Moya, the latter tried to run away.  He chased and tripped him and from time to time Mr Moya would fall, stand and ran again.  As he was chasing Mr Moya, he looked back and noticed the deceased bleeding profusely.  The visibility in the area where they executed the attack was good, because there was a high mast street light pole nearby.  When Mr Moya successfully escaped, he went back to the first appellant and noticed the deceased lying on the ground and had a stab wound on the left side of his neck.  He shouted at the first appellant and yelled at him that the latter had killed the deceased.  All three of them decided to run away.  An hour or so later, they saw the police and community members in the area where incident occurred, and their curiosity caused them to come closer the scene and to observe what was happening.  At some point, members of the community pointed to them as the people responsible for the attack of the deceased and he and the first appellant ran away.  However, the second appellant did not run and the police approached him.  When the second appellant came back to join them, he conveyed to them that the police only wanted to know from him whether he knew anything about the deceased’s death.  From there they went to his home and later the appellants left leaving him at his home.  The following morning, bothered by the previous night’s incident, he told the first appellant that the latter had killed the deceased.  However, the first appellant was disdainful and less interested on that.  Although this incident haunted him, he never reported it to the police for a considerable period.  On 20 August 2016, he was arrested for an unrelated offence and was later sentenced to life imprisonment.  While serving his life term imprisonment, the first appellant who was his long-time friend, would visit him at prison and would spoil him with cigarettes and tobacco.  However, at some stage these visits ceased.  While he was in prison, he called his grandmother, who is related to the deceased’s family, and asked for a telephone number of the deceased’s family.  Having obtained the telephone number, he called it.  During November or December 2017, subsequent to a call received from Mr Shoba, the deceased’s uncle, the latter visited him while he was in prison.  During their face-to-face meeting with the deceased’s uncle, he offloaded the information about the deceased’s death and how he and the appellants killed the deceased.  He testified that, he knew both the appellants very well even before this incident.  The first appellant was his long-time friend, they met in 2006 and since then, they would go on hunting from time to time.  He also knew the second appellant through the first appellant.  However, his evidence was riddled with contradictions from that of Mr Moya and I deal with those contradictions later below.

[6]       Both the appellants also testified in their defence after the trial court refused their application for discharge in terms of section 174 of Act 51 of 1977.  They disavowed any knowledge and involvement in the murder and robbery of the deceased.  Their defence was that of an alibi.  Both testified that on the night in question, they were at G G farm in Fort Brown area where the second appellant resides.  They also testified on the possible reasons why the State witness Noqayi would falsely implicate them.  Their explanation and defence was rejected by the trial court.

[7]       The trial court concluded that it was satisfied that the State had proved its case beyond reasonable doubt on both counts and accordingly convicted the appellants.

[8]       The trial court relied solely on the evidence of Noqayi on the identification of the appellants.  It appreciated that Noqayi was a single witness and an accomplice and therefore his evidence had to be approached with caution.  On the contradictions the trial court said the following:

Looking at the evidence before me and taking note of [these] contradiction[s], of importance is to consider as State vs Mkohle says, look at the number of contradictions, their bearing on evidence and the importance, bearing on evidence.  Indeed the contradictions relate to circumstances under which observations were made, they are material, but they are to be looked at in the circumstances.  Clearly the second witness did not have an opportunity to observe properly and that is why he said, “I saw three to four people”, and he was attacked unexpectedly, it is not surprising that he was unable to pick up some of the details, take note of some of the details which were noticed by Mr Noqayi who was on the attack and says he was with the accused before this court.  He asked for no gratification, he came forward.  He still has a lot of loose by admitting and exposing himself, he is already serving imprisonment for life.  And he knows there is nothing stopping the court if there is evidence placed before it to convict him and sentence again.”

[9]       The technique utilised by the trial court in the evaluation and assessment of the contradictions in the State’s case and the conclusions thereon was heavily criticised by the appellants.  Before us the appellants argued that the trial court erred in finding that the State had proved its case beyond reasonable doubt.  The argument was predicated on the manner in which the trial court dealt with the contradictions, the fact that Noqayi was a single witness and accomplice.  It was argued that taking into account the totality of the State’s evidence, the contradictions therein and applying the cautionary rule, and weigh that against the appellants’ alibi defence, the trial court should have concluded that the State failed to prove its case beyond reasonable doubt and that the appellants’ alibi was reasonably possible true.  Therefore, the appellants should have been acquitted.

[10]     On the other hand, it was argued on behalf of the State that the trial court’s findings and conviction should not be disturbed because the evidence supports its findings and the authorities on evaluation of contradictions and the approach a court should adopt in respect of a single witness and an accomplice.

[11]     It is trite that in a criminal case, the State bears the onus to prove the guilt of an accused beyond reasonable doubt.[4]  In S v Sithole,[5] the Supreme Court of Appeal said the following:

A court does not look at the evidence implicating the accused in isolation to determine whether there is proof beyond reasonable doubt nor does it look at the exculpatory evidence in isolation to determine whether it is reasonably possible that it might be true.  The correct approach is set out in the following passage from Mosephi and others v R LAC (1980 - 1984) 57 at 59 F – H :

The question for determination is whether, in the light of all evidence adduced at the trial, the guilt of the appellants was established beyond reasonable doubt.  The breaking down of a body of evidence into its component parts is obviously a useful guide to a proper understanding and evaluation of it.  But, in doing so, one must guard against a tendency to focus too intently upon the separate and individual part of what is, after all, a mosaic of proof.  Doubts about one, aspect of the evidence led in a trial may assist when that aspect is viewed in isolation.  Those doubts may be set at rest when it is evaluated again together with all the other available evidence.  That is not to say that a broad indulgent approach is appropriate when evaluating evidence.  Far from it.  There is no substitute for a detailed and critical examination of each and every component in a body of evidence.  But, once that has been done, it is necessary to step back a pace and consider the mosaic as a whole.  If that is not done, one may fail to see the wood for the trees.” (footnote ommitted)

[12]     The approach a court must follow in assessing the evidence is to weigh up all the evidence that points to the guilt of an accused person against that which is indicative of their innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and having done so, to decide whether the balance weighs so heavily in favour of the State so as to exclude any reasonable doubt about the accused’s guilt.[6]

[13]     It is common cause that Mr Moya could not identify any of the appellants, because on his version, the assailants’ faces were covered, the area where the attack took place was dark and they were attacked unexpectedly.  The only evidence on identification is that of Noqayi.  As foreshadowed above, there were many contradictions between Noqayi’s evidence and that of Mr Moya.  In resolving such contradictions, the trial court Noqayi’s evidence and stated that Mr Moya’s recollection of events was possibly influenced by his state of sobriety and the fact that he was attacked unexpectedly. 

[14]     When a trial court considers contradictions, the approach it must follow is the one outlined in S v Mafaladiso en Andere.[7]  On this appeal, the manner in which the trial court evaluated such contradictions and conclusions it arrived at are central to the outcome hereof. 

[15]     Before we debate and analyse such contradictions, it is incumbent that we refer verbatim to their evidence.  We shall commence with the evidence of Mr Moya wherein he testified on the circumstances under which the offences were committed, and said:

PROSECUTOR:  Now Sir can you please inform the court what happened on that said night.

MR MOYA:   On the 16th of April 2016 we were at no. 5 in Extension 4, by Mr Kulati’s place, we were sitting there enjoying ourselves, at night we left and set off on our way home, when we entered the narrow passage at 20 D, in the middle of the passage, outside the gate of no. 24 D, when we were about to go past 25 D a young man approached, [there] were approximately three or four of them, before we went through they came carrying knives, I do not know whether it as a bayonet or a sword, but it was not a small knife.  When I started jumping they stabbed me outside the gate of 24 D, I asked them whether they wanted a phone or what it is that they wanted, and then I had to give them the phone by throwing it to them, and the other one attacked Simphiwe Shoba, I was wearing this t-shirt Your Worship, this shirt Your Worship.

INTERPRETERAnd then the witness produced a torn and blood stained yellow shirt Your Worship

MR MOYA:  And a pair of khaki pants.  They stabbed me on the shoulder part, they stabbed me on the shoulder, but they had aimed to stab me on my neck, I blocked the blow off using my arm.  When the second person got to me I was able to jump up and ran into no. 15 D and I shouted there, I called out to Chwayita, Chwayita Phakamisa, nobody responded and then I ran to 16 D, and it was then that the people responded.  I required assistance, and all of this took place around the vicinity of 24 and 25 D, that is where the life of Simphiwe Shoba ended.  I couldn’t see the faces of these young men because they had covered themselves.  That is all Your Worship thank you, and they had taken our phones.”  (Transcript p 12 lines 12–p 13 line 19).

[16]     Noqayi’s evidence was that:

COURT:  Yes you broke from the group and you ran to the front so as to block them, proceed.

MR NOQAYI:  Okay, when I approached from the front they got a fright when they saw me and then they saw the two behind them, they didn’t turn back and go back to the two that was following from behind them, they continued towards me, as they came they split up, one went to the right and other to the left as they were coming in front of me I approached the one to my left, one was on Terra’s side and one was on Chris’side, Terra got to the one on my left first, when Terra got to the one I saw that the other one wanted to run away and then I turned and chased after the other one who wanted to run away, he ran away, from time to time I would trip him and he would fall down and get up again, but I also didn’t have a good balance, the one who was left behind ended up being stabbed and I think on the side of the neck, the left side of the neck, from time to time I would look behind and the I saw that the other one was bleeding and bleeding profusely, and he took out his t-shirt and held it to the side of his neck.

COURT:  Come again?

MR NOQAYI:  He took out his t-shirt and held it to the side of his neck, because I could see the way he was bleeding I turned back and went back to them and swore they must leave alone because he might die, nobody said no and then we left.and went back to Blue Tooth.”

[17]     Evident from the above extract of their evidence and further evidence on record, these two witnesses contradicted each other on number of respects namely on:

(a)        how the assailants approached them.  Mr Moya’s version was that the assailants were walking together and they were approached from behind.[8]  The assailants were armed with “swords” or “bayonets”.  However Noqayi’s evidence is that he together with the appellants followed them until they past Mawetu’s place.  Then he separated and went around and approached them from the front in order to corner them;

(b)       lighting and visibility of the area where the attack occurred.  Mr Moya testified that the area was dark hence; he could not identify the assailants.  However, on Noqayi’s version, the area was well lit because there was a high mast lamp;[9]

(c)       whether the assailants’ faces were covered when attack occurred.  Mr Moya testified that their faces were covered hence he could not identify them.[10]  On the contrary, Noqayi testified that they did not cover their faces;[11]

(d)       whether Mr Moya sustained any injuries during the attack.  His evidence was that he was stabbed on his shoulder and was bleeding profusely[12] contrary to Noqayi’s version.[13] Mr Moya even produced a T-shirt soaked in blood at the court;

(e)        what occurred during the attack.  Noqayi’s version was that Mr Moya managed to run away and as he was running away, Noqayi would trip him and he would fall down and get up again and run.  However, Mr Moya testified that he ran away and asked for help at the neighbouring houses and did not mention that he was tripped and fell as he was running away; and

(f)        the circumstances regarding Mr Moya’s phone.  Noqayi was certain that no phone was taken from neither Mr Moya nor the deceased.  Mr Moya’s version was that although the assailant made no demand, but he assumed that they wanted their phones hence, he threw his phone to them and it was caught by the guy who was chasing him. On Mr Noqayi’s evidence, he was “the guy” who chased Mr Moya as he was running away.

[18]     The trial court, although it acknowledged these contradictions but the manner in which it evaluated and considered them, is open to serious and objective criticism.  The trial court reasoned itself that, it is possible that alcohol and the fact that the attack was unexpected played a role on Mr Moya’s recollection of events.  Its reasoning is not borne out and supported by the State’s evidence.  Mr Moya’s state of sobriety and whether same influenced his evidence was never an issue.  Although he admitted having consumed alcohol prior to their attack, he was very much certain on the circumstances of commission of the offences.  His state of mind on his recollection of the events of the fateful night was not diminished due to the intake of alcohol.  The trial court’s reasons that alcohol possibly played a role hence the contradictions, was speculative.  We agree that both these two witnesses were testifying about the same incident, but the trial court misdirected itself on the manner in which it evaluated the contradictions and the subsequent conclusion it reached.  Mr Moya was the victim, there was no motive for him to give false evidence and his state of sobriety did not affect his recollection of events.  His evidence on the circumstances upon which he and the deceased were attacked was clear.  Same cannot be said about Noqayi’s evidence.  He was an accomplice and was expecting indemnity from prosecution for the same offences.  There was a benefit for him to spice up his evidence and to down play his role in the commission of these offences.  He was acutely aware that he was not yet indemnified of prosecution and was aware of the consequences of his testimony in the event he is not granted indemnity in terms of section 204 of Act 51 of 1977.  Given the nature of the contradictions, their number and their bearing on the issues the trial court had to adjudicate, it should have concluded that Noqayi’s evidence was not trustworthy and that it was not satisfied that truth was told.[14]

[19]     In addition, in weighing up the State’s evidence, the trial court should have approached Noqayi’s evidence with extra caution because he was a single witness and an accomplice.  In S v Hlapezula and Others[15] it was said that the reasons for a approaching the evidence of an accomplice with care are the following:

First, he is a self-confessed criminal.  Second, various considerations may lead him falsely to implicate the accused, for example, a desire to shield a culprit, or particularly where he has not been sentenced, the hope of clemency.  Third, by reason of his inside knowledge, he has a deceptive facility for convincing description – his only fiction being the substitution of the accused for the culprit.”

[20]     The reasons articulated in Hlapezula (supra) applies herein.  Noqayi is a self-confessed criminal about not only the offences herein but, other crimes that he testified about in his evidence.  He is a sentenced prisoner serving a period of life imprisonment for an unrelated offence.  He has nothing to lose because he is already serving a life term imprisonment. The delay for him to speak out about this incident is also factor that should have weighed against him.  He waited until he was sentenced to life imprisonment before he decided to speak out.  In addition, his grandmother is a relative to the deceased’s family and by inference, he himself is also related to the deceased’s family.  The deceased’s death negatively affected his grandmother.  He has not been granted indemnity from prosecution but there is hope of clemency.  There is sufficient motive for him to implicate the appellants in order to shield the real culprits.

[21]     In Naude and another v S,[16] it was said that a trial court should be particularly vigilant in evaluating the evidence of a single witness where that witness is one seeking indemnity in terms of section 204.  Such evidence must be treated with outmost care.  In S v Ndawonde 2013 (2) SACR 192 (KZN) the court said that such a witness:

“… [is] obliged to tread a very lonely path as he desperately strive to disgorge enough information about the crime he and his erstwhile partners in crime committed, in to establish their guilty, while at the same time implicating himself sufficiently in the commission of the crime to establish his bona fides, thereby securing his indemnity from prosecution at their expense”[17] 

[22]    Because the identification of the appellants was one of the issues that the trial court had to decide, it had to be satisfied that the witness making the identification was not only honest, but also reliable.[18]  In S v Mthethwa,[19]  Holmes JA, said the following:

Because of the fallibility of human observatory evidence of identification is approached by the Courts with some caution.  It is not enough for the identifying witness to be honest, reliability of his observation must also be tested.  This depends on various factors, such as lighting, visibility, and eyesight, the proximity of the witness, his opportunity for observation, both as to time and situation, the extent of his prior knowledge of the accused, the mobility of the scene, corroboration, suggestibility, the accused’s face, voice, build, gait, and dress, the result of identification parades, if any and of course, the evidence by or on behalf of the accused.  The list is not exhaustive.  These factors, our such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other, in the light of the totality of the evidence, and the probabilities” (footnote omitted.)

[23]     Had the trial court evaluated the evidence in totality in the manner postulated in Sithole, and Chabalala above,   it would have concluded that the guilt of the appellants was not established beyond reasonable doubt in the light of all the evidence adduced at trial.  We therefore conclude that on the totality of the evidence the State failed to prove the guilt of the appellants beyond reasonable doubt.

[24]     The trial court rejected the appellants’ explanation about Noqayi’s motive of falsely implicating them.  It concluded that “the State [led] sufficient evidence that shows beyond any shadow of doubt that the alibi defence by the two gentlemen [appellants] is false.  It is clear that they started having issues with their friend when they realised that he was about to jump ship and expose what happened that evening.  Clearly he testified, he bears on grudge against them.  I find on available evidence the alibi defence is false beyond reasonable doubt.”[20]

[25]     The trial court’s reasoning in rejecting the appellants alibi defence is legally flawed.  Firstly, there is no onus upon an accused person to show or explain why the State witness could falsely implicate him.[21]  Secondly, when a witness, including an accused person in a criminal case is untruthful in one aspect of his evidence, it does not mean that his evidence should be rejected out of hand and in totality.[22]  The trial should have still considered the appellants’ evidence and disregard their explanation why Noqayi was implicating them and weigh the balance of their evidence against the totality of the evidence adduced at the trial.  In S v Musiker[23] it was held that once an alibi has been raised, the alibi has to be accepted; unless it can be proven that it is false beyond reasonable doubt.   In the light of these authorities, the trial court misdirected itself when it rejected the appellants’ alibi simply because they had no acceptable reason why the State witness (Noqayi) implicated them.

[26]     For the aforegoing reasons the appeal should succeed and conviction of both counts be set aside.

[27]     The appropriateness of the sentence was also an issue raised in this appeal.  However, in light of our findings on conviction, it is unnecessary to discuss the submissions raised in respect thereof because it automatically follows that the sentence falls away.

[28]     In the circumstances, the following order is issued:

            1.         The appeal is upheld.

            2.         The appellants’ convictions and sentence are set aside and substituted with the following order:

            “Both accused no. 1 and no. 2 are found not guilty on both counts 1 and 2 and are accordingly acquitted and discharged

N GQAMANA

JUDGE OF THE HIGH COURT

I agree. It is so ordered.

R W N BROOKS

JUDGE OF THE HIGH COURT

APPEARANCES:

Counsel for the appellants               :           D P Geldenhuys

Instructed by                                     :          Legal Aid South Africa

                                                                     Grahamstown

Counsel for the respondent             :           H Obermeyer

Instructed by                                    :          Director of Public Prosecutions

                                                                    Grahamstown

Date heard                                      :           21 July 2021

Date judgment delivered                 :           7 September 2021

[1]  Transcript p13 lines 17 and 18.

[2]  Transcript p 13 lines 8-11.

[3]  I mean no disrespect to him.

[4]  R v Difford 1973 AD 370 at 373, 383 and S v Van Aswegen 2001 (2) SACR 97 (SCA) para 8.

[5]   [2012] ZASCA 85, (31 May 2012)

[6]  S v Chabalala 2003 (1) SACR 134 (SCA) para 15.

[8] Transcript p 14.

[9] Transcript p 46 lines 11–13.

[10]  Transcript p 13 line 179, p 18 line 6.

[11]  Transcript p 57 lines 10–15.

[12]  Transcript p 13.

[13]  Transcript p 47 lines 15–20.

[14]  S v Sauls 1981 (3) SA 172 (A) at 180 F.  

[15]   1965 (4) SA 439 (A) at 440 D–E.

[16]   [2011] 2 All SA 517 (SCA) para 34.

[17]   At para 8.

[18]  S v Miggels 2007 (1) SACR 675 C at 678D.  

[19]  1972(3) SA 766 (A) at 768 A–C.

[20] Transcript p 174.

[21] S v Robiyana and Others 2009 (1) SACR 104 (CK) at 116-7,  R v Mthembu 1956 (4) SA 334 (1).

[22] S v Oosthuizen 1982 (2) SCA 571 (T) at 576 A–B.

[23] 2013 (1) SACR 517 (SCA) paras 15–16.