IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)

Date:  2009-02-06
Case Number:  A306/2007  
UNREPORTABLE
In the matter between:

AARON TSHOSANE                                                                           Appellant

and

THE STATE                                                                                     Respondent

JUDGMENT

SOUTHWOOD J

[1]	On 10 June 1998 the appellant, and his co-accused, Lucas Kgotsatso Mokoena (‘Mokoena’), respectively accused no 1 and accused no 2 in the court  a quo, were each convicted in the Vereeniging Circuit Court (per J.C. Claassen J sitting with an assessor) of murder, contravening section 2 of Act 75 of 1969 (unlawful possession of a firearm) and contravening section 36 of Act 75 of 1969 (unlawful possession of ammunition).  The court a quo sentenced the appellant and Mokoena each to 25 years imprisonment for the murder, 3 years imprisonment for the unlawful possession of the firearms and 2 years imprisonment for the unlawful possession of the ammunition:  i.e. an effective sentence of 30 years imprisonment.  With the leave of the court a quo, granted on 5 September 2006, the appellant appeals against both the convictions and the sentences.

[2]	On appeal, the appellant contends that the State failed to prove beyond a reasonable doubt that it was the appellant and Mokoena who shot and killed the deceased.  With reference to S v Mafaladiso en Andere 2003 (1) SACR 583 (SCA) at 593e-594h, the appellant has highlighted the contradictions in the evidence of the two state witnesses, Mmbathu Phyllis Kolobe (‘Ms Kolobe’) and Michael Potswane Mofokeng (‘Mofokeng’), and contends that because of the contradictions the appellant’s version should have been accepted as reasonably possibly true.  The appellant contends that if the convictions are confirmed the sentences should be ordered to run concurrently.  He submits that the three counts arose out of the same incident and the sentences should have been ordered to be served concurrently to avoid the imposition of a disturbingly inappropriate sentence.  The respondent supports the convictions but concedes that the convictions should have been taken as one for the purposes of sentence and submits that a sentence of 15 years imprisonment is appropriate.

[3]	It is common cause that at about 15h00 on Sunday 2 March 1997 and 	at the shebeen operated by the second state witness, Michael 	Mofokeng, two men shot and killed Leonard Tshepo Marvel Khabi 	(‘the deceased’) and that he died on the scene from a bullet wound in 	the heart.  It is also common cause that at the time of the murder, the 	deceased’s girlfriend, Ms Kolobe, who was also the first state witness, 	was sitting at a table in the shebeen with the deceased.  It is further 	common cause that the appellant and Mokoena were present in the 	shebeen, in the same room as the deceased and Kolobe, when the 	murder was committed.

[4]	The issue before the court a quo and this court was whether the State proved beyond a reasonable doubt that the appellant and Mokoena entered the shebeen, took out firearms and shot the deceased as he was standing up.  The appellant and Mokoena denied that they shot the deceased.  They testified that two other unknown men entered the dining room through an outside door, produced firearms and shot the deceased while he was in the process of standing up.

[5]	It is of importance in this case that the appellant and Mokoena have nicknames:  the appellant is called ‘Khalo’ and Mokoena is called ‘Slender’.  It is common cause that after the murder the appellant and Mokoena left the premises without leaving their names and addresses or telephone numbers and that they did not communicate with the police or attempt to assist the police in any way.  It is also common cause that between 15h00 and 19h00 on 2 March 1997 Ms Kolobe gave a statement to the police in which she identified the killers as Khalo and Slender.  After describing how she had met Slender in the street outside the shebeen before the murder she described the murder as follows:

	‘At about 15h25 Slender came back accompanied by Khalo also the suspect and found me sitting next to Tshepo (deceased).  Tshepo was busy drinking beers.  Slender just said to the deceased to shoot him as he had promised to shoot him.  Tshepo didn’t replied and he just stood up.  Slender and Khalo drew up pistols and shoot Tshepo the deceased but I didn’t notice where he was shot.  Tshepo fall down and lyed on his stomach and bleed furiously.

	Boty suspects went out freely without running and Seputswe, the owner of the house went out to phone the police officers.’

This statement put her right next to the deceased when Khalo and Slender spoke to the deceased and fired shots at him.  It was not disputed that the people referred to were the appellant and Mokoena and it was not suggested, let alone proved, that Ms Kolobe had a motive to falsely implicate the appellant and Mokoena in the murder.  It was not suggested to Ms Kolobe that before the police took her statement she conspired with someone to falsely implicate the appellant and Mokoena.  Ms Kolobe was not a friend of either the appellant or Mokoena and the only way she could have identified them by their nicknames was if she had met them previously, as she testified.

[6]	The second state witness, Michael Mofokeng, also gave the police a 	statement at about 19h00 on 2 March 1997.  Unlike Ms Kolobe, 	Mofokeng did not identify the killers.  He spoke about three unknown 	black men who came into the shebeen, one of whom produced a pistol 	and shot the deceased.  In his evidence however, Mofokeng testified 	that the appellant, Mokoena and one Neo, who was not called as a 	witness, entered the shebeen, where the appellant and Mokoena shot 	and killed the deceased.  As can be expected Mofokeng was 	extensively cross-examined on the discrepancies between his 	statement and his evidence and between his evidence and that of Ms 	Kolobe.  Mofokeng did not concede that he wrongly identified the 	appellant and Mokoena and he insisted that he was present when the 	murder was committed.  It also emerged that Mofokeng later made 	another statement in which he rectified the errors in the first 	statement.  In this statement Mofokeng clearly identified Khalo and 	Slender as the killers.  Mofokeng was not cross-examined on his 	second statement.

[7]	The approach of the counsel defending the appellant and Mokoena 	was to emphasise the discrepancies between the witnesses’ evidence 	and their statements and between the witnesses’ evidence inter se.  	They did not succeed in obtaining any concessions regarding the 	identity of the murderers.

[8]	The appellant and Mokoena were not impressive witnesses.  	They could not explain why they simply left the murder scene 	and did not attempt to assist the police to find the perpetrators.  	They also could not explain why they did not immediately raise 	with the police their innocent version.  They also could not 	explain how Ms Kolobe could identify them if she did not know 	them.  It is also inherently improbable that the shebeen was as 	full as they say at the time of the murder. The relevant 	photographs do not show pieces of glass on the floor	or bottles 	on the table.  Their evidence also differs to such an extent from 	the version put to the state witnesses that it cannot be accepted 	as the truth and the evidence of the state witnesses must be 	accepted as correct – see President of the Republic of South 	Africa and Others v South African Rugby Football Union 	and Others 2000 (1) SA 1 (CC) paras 61-63;  S v Boesak 2000 	(1) SACR 633 (SCA) para 50-54.  Thus, they testified that they 	each arrived separately at the shebeen, that they purchased 	beer from Mofokeng, that they sat for some time drinking their 	beer (the appellant consumed two drinks and Mofokeng said 35 	minutes) before the murder, that the murderers entered the 	dining room through the outside door and that only one shot the 	deceased.  None of these matters was put to the state 	witnesses and they contradicted the version put that both men 	had shot and killed the deceased.  Their explanation for why 	they did not describe to the police the murderers and how they 	were dressed defies belief. 

[9]	The court a quo carefully considered the evidence and the 	probabilities and concluded that the appellant and Mokoena murdered 	the deceased.  While it is true that there were contradictions in the 	state’s evidence these contradictions do not relate to the identification 	of the appellant and Mokoena as the perpetrators.  They certainly do 	not justify a finding that the court a quo erroneously convicted the 	appelIant and Mokoena – see S v Mafaladiso en Andere supra at 	593i-594c.  Ms Kolobe was an outstanding witness.  Her evidence was 	clear and coherent.  She did not contradict herself in evidence and she 	satisfactorily explained the errors in her statement.  Significantly the 	defence did not even attempt to place her second statement before the 	court.  She was present at the murder and saw people whom she knew 	shoot and kill the deceased.  She told the police who they were within 	hours of the incident.  There is no suggestion that she wished to falsely 	implicate the appellant and Mokoena in the crime.  If Ms Kolobe had 	been a single witness a conviction would have been justified on her 	evidence.  In the light of all the facts Mofokeng’s evidence corroborates 	that of Ms Kolobe.  He satisfactorily explained why he did not identify 	the killers in his first statement made on 2 March 2007 and the defence 	did not cross-examine him on the second statement in which he 	identified the appellant and Mokoena as the perpetrators.  I agree with 	the reasoning and analysis of the facts of the court a quo and also 	consider the contradictions to be immaterial.  In my view the conclusion 	of the court a quo was correct and there is no basis for overturning the 	convictions.

[10]	Regarding sentence, the concession made by the respondent is too generous.  This was a carefully planned execution of the deceased.  There can be no doubt that the appellant and Mokoena went to the shebeen to murder the deceased.  The sentence of 25 years imprisonment was therefore appropriate.  In my view the other sentences were also appropriate.  There is no basis on which this court can interfere with them.  Nevertheless I agree with the appellant’s counsel that the cumulative effect of the sentences is excessive and that the sentences for unlawful possession of the firearms and ammunition should be ordered to be served concurrently with the sentence for murder.

	Order

[11]	I	The appellant’s appeal against the convictions is dismissed;

	II	The appeal against the sentence is upheld insofar as it is 			ordered that the sentences imposed for the unlawful possession 		of the firearm and ammunition be served concurrently with the 		sentence imposed for murder.  The effective sentence is 			therefore 25 years imprisonment.

	III	In terms of section 282 of Act 51 of 1977 it is ordered that all the 		sentences imposed be deemed to have been imposed on 10 		June 1998 so that the appellant serves an effective sentence of 		25 years imprisonment from 10 June 1998.

_______________________
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT

I agree

_______________________
M.F. LEGODI
JUDGE OF THE HIGH COURT

I agree

_______________________
J.R.G. POLSON
ACTING JUDGE OF THE HIGH COURT

CASE NO:  A306/07  

HEARD ON:  4 February 2009  

FOR THE APPELLANT:  MR. J. VAN ROOYEN  

INSTRUCTED BY:  Legal Aid Board

FOR THE RESPONDENT:  ADV. P. VORSTER 

INSTRUCTED BY:  Director of Public Prosecutions

DATE OF JUDGMENT:  6 February 2009