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IN THE HIGH COURT OF SOUTH AFRICA

(NORTH WEST HIGH COURT, MAHIKENG)

CAF 01/2015

In the matter between:

KGOPOTSE MOEMA                                                                1^ST APPELLANT

MOSEKI MOEMA                                                                      2^ND APPELLANT

and

STATE                                                                                           RESPONDENT

 

FULL BENCH APPEAL

 

KGOELE J GUTTA J & DJAJE AJ

 

DATE OF HEARING                      :        22 MAY 2015

DATE OF JUDGMENT                  :        2 JULY 2015

 

FOR THE APPELLANT                :      Adv. Skibi

FOR THE RESPONDENT            :        Adv. Munyai

JUDGMENT

KGOELE J:

[1] The appellants together with one Martha Moema (former Accused 1, who has not yet prosecuted her appeal) stood arraigned at Garankuwa Circuit Court charged with one count of Murder read with the provisions of Section 51 (1) of the Criminal Law Amendment Act 105 of 1997.

[2] They were all found guilty as charged and sentenced to life imprisonment. Leave to appeal to the Full Bench of this Court was dismissed by the Court a quo but they successfully petitioned the Supreme Court of Appeal (SCA), hence this appeal. The appeal is against both conviction and sentence.

[3] The following facts were common cause in this matter: That the deceased went missing as from 2 March 2010 and was reported to the police as missing by his wife (Martha Moema- former accused 1 in the Court a quo) and his daughter, the former accused 4, Matlhodi Happy Moema (Matlhodi);

[4] On 27 June 2011 Samuel Hlungwani & Eric Tshabalala were requested by Matlhodi to do paving in her home and they discovered bones in a shallow grave. Through the forensic investigation it was discovered that the said bones are human bones and were the remains of the deceased. That, on 27 June the appellants were present at home when the bones were discovered by Mr Hlungwani and Mr Tshabalala.

[5] Further that the appellants as well as Mr Hlungwani & Mr Tshabalala were questioned by the police and then arrested on 27 June 2011 and were taken to Garankuwa police station for detention. During the night they were again taken to Orlando police station for further detention and questioning. On the morning of 28 June the appellants and their mother were taken to the Moema family where they were asked to explain what they did. However, this evidence was held to be inadmissible by the Court a quo.

[6] The State led the evidence of various witnesses.  I deemed it not necessary to deal with the evidence of all of them because most of their evidence is of a formal nature and/or uncontested.  The said evidence did not even incriminate the appellants at all.

[7] The evidence of the State is mainly comprised of the confession and a pointing out in which former accused 1 implicated herself and the two appellants. The said confession was ruled admissible against former accused 1 only and inadmissible against the appellants. The State led no evidence of a pointing out or a confession against the first appellant. As against the second appellant, the State also led no evidence of a confession and the evidence of a pointing out by him was also ruled to be inadmissible. The evidence of the confessions to the Moema family by the two appellants was also ruled inadmissible by the Court a quo. The Court a quo only relied on circumstantial evidence to convict the appellants’ as there was no direct evidence linking them to the commission of the offence of murder.

[8] The evidence of the two appellants that is relevant to the consideration of this Appeal is that on the day their father was allegedly killed they were not at home for the whole day as they both came back very late in the afternoon. The first appellant’s version is that he had gone to Pretoria to deliver some CV’s at different places as he was looking for employment and also watched some movies there. The second appellant testified that he had gone to work and worked until late. When they both left in the morning their father was still at home. When they returned, although they did not arrive home at the same time, their mother showed them the bloodspots on the carpet in her main bedroom. The bloodstains appeared as if someone tried to wipe or wash them from the carpet. All of them were surprised as to the origin of this blood, but their mother told them that this is how she found the house when she arrived from work and further that when she was about to ask the neighbours about the whereabouts of their father, she received an sms from their father’s cellphone which read:

‘‘I am tired of your children, I am at Klipgat, and I cut myself with a razor. I do not know when am I going to come back’’

[9] Upon seeing this sms from their mother’s cellphone they decided not to go to the neighbours because at least the family knew the whereabouts of their father. It was only after Matlhodi, their sister arrived the following day that a decision to report the matter to the police was made by all four of them. On this aspect, their version is not the same as the second appellant said it was after three months when Matlhodi returned home. On the aspect of finding the bones of their father, first appellant said he was sleeping in the house when he heard Mr Hlungwni and Mr Tshabala’s voices at the back yard. Upon investigating what they were doing, they told him that Matlhodi assigned them to do some paving there, and he told the two to stop paving and went to verify with Matlhodi. After verification, he never returned back to them.  He slept in the house up until he was called to see the bones after their discovery. The second appellant’s version on this is that he was all along asleep and was awoken by the police when they were already at their house he saw the bones as well. In short, they denied killing their father, and that they are not the ones who could have placed him in the back yard. They claim it could have been anyone including strangers. As far as they knew, their father had disappeared.

[10] The Court a quo drew an adverse inference that the appellants were involved in the commission of the offence mainly based on the following:

·        On the day when the deceased was killed, former Accused 1 and the appellants were staying in the same house and no one else.

·        After the deceased disappeared the appellants remained passive;

·        There was a sudden appearance of the grave at the back yard and no one notice;

·        The improbability of someone from the outside who could have come and committed the offence while both appellants were not at home;

·        And that their mother alone could not have committed the offence in question.

         

[11] The issue to be determined by this Court as gathered from the appellant’s grounds of Appeal is therefore whether the Court a quo erred in law and/or fact to find that:

·        The State succeeded to prove its case beyond a reasonable doubt that the appellants were involved in the commission of the offence in question;

·        The only inference which was drawn by the Court a quo is the only inference to be drawn from the proven facts in this case.

·        By not making a ruling on the constitutionality/admissibility of a confession which was made to Moema family (including the deceased brother, Mr E Moema & Ms W Moema, deceased’s sister) on the Section 174 application for discharge which gave the state a liberty to cross-examine the appellants on the said confession.

[12] I am of the view that the last issue by the appellants’ Counsel that relates to the constitutionality/admissibility of a confession which was made to Moema family need not be considered by this Court for the simple reason that the Court a quo did not at all base its verdict of convicting the appellants on the said confession as it ruled it inadmissible. In my view, the finding of the Court was correct and the submission by Counsel is therefore moot.

[13] In the case of S v Reddy 1996 (2) SACR 1 (A) at 8c-e it was held that it is settled law that where an inference is sought to be drawn all the proven facts taken together must exclude every other reasonable inference from them save the one sought to be drawn. It is not one fact that must exclude all the other inferences, but all the facts as a whole must do so.  See also R v De Villiers 1944 AD 492 at 508.

[14] In the case of S v Cooper 1976 (2) SA 875 (T) at 888H to 889A the Court held :

“when triers of fact come to deal with circumstantial evidence and inferences to be drawn therefrom, they must be careful to distinguish between inference and conjecture or speculation. There can be on inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which inference can be made, the method of inference fails and what is left is mere speculation or conjecture”.

[15] Advocate Skibi submitted that the fact that the appellants were staying together with the deceased cannot or is not the only inference that ought to have been drawn that they were involved in the commission of the offence.  According to him, a possibility exists that former accused 1 might have committed the offence with another person while both appellants were still away.

[16] Advocate Munyai on behalf of the State replied by saying that the likelihood of outsiders committing this offence is also non-existent. They could not have had all the time to even dig a shallow grave and bury the deceased without fear of being caught. He continued by saying that in any event, why would they even go to that extent of burying the body? The proven facts according to him do not support this as a reasonable inference. The only reasonable inference, as correctly held by the Court a quo, remains that the appellants and former accused 1 committed the crime.

[17] Advocate Munyai also excluded the possibility that Matlhodi could have assisted her mother (former accused 1) to kill the deceased.  He based this contention largely on the following:

(i)           She was not staying at that house when the offence was committed;

(ii)          She is the one who reported the matter to the police based on what they told her;

(iii)        She contracted people to erect a paving in the backyard. She could not have done so knowing that the deceased was buried there with the inherent likelihood that the remains would be uncovered.

[18] I fully agree with Advocate Skibi that if one takes the undisputed version of the two appellant’s that they were not home during the day, and further that they were shown the bloodstains in the bedroom after sunset when they came back, the possibility of anyone else from outside the family other than the appellants having assisted the former accused no. 1 in the killing of the deceased cannot escape one’s mind and furthermore, be simply brushed away. This is not the only possibility, if one has regard to the fact that Matlhodi left the parental home before the deceased disappeared but surprisingly came back to live with them again shortly after the deceased’s disappearance. This surprise return of Matlhodi has also been recognised by the Court a quo. Evidence on record which also was not refuted reveals that Matlhodi left the common household because there was a rift between Matlhodi and her father (the deceased) and went to rent a place to stay with her child. Her sudden appearance to come and live with them was not explained. Matlhodi was former accused no. 4 and the case against her was withdrawn at the start of the proceedings. A possibility that she could have also assisted former accused no. 1 cannot simply be brushed away. This possibility can also in my view explain the shallow grave that was dug. The submission by Advocate Munyai that the two suggestions/ possibilities are not supported by the facts of the case does not hold water.

[19] Advocate Skibi also attacked the Court a quo’s finding that the conduct of the appellants of remaining passive strengthens the inference drawn by it that they participated in the killing of the deceased. While one can accept this fact, sight should not be lost of the evidence that was before the Court a quo that the appellants assisted in reporting the disappearance of the deceased and setting up the posters of the deceased as a missing person. They furthermore did not run away when they saw that Mr Hlungwani and Mr Tshabalala were busy at a spot where the deceased was buried, they remained in the house before the discovery of the bones on that day and even after the discovery of the bones until the police arrived. On the same breath, the reaction of Matlhodi also after having knowledge of what was discovered is equally telling. The unrefuted evidence of Mr Tshabalala is that he requested Matlhodi about four times to call former accused no. 1 soon after the bones were discovered. Matlhodi instead decided to first walk out of the premises to call a person with whom she congregates with. This person that she congregates with is the one that came first and former accused no. 1 only arrived later.

[20] Much was said by Advocate Munyai about the fact that Matlhodi could not have contracted the two men to erect a paving in the backyard whilst knowing that the deceased was buried there and there was a likelihood that the remains would be uncovered. A similar argument was raised by Advocate Skibi on behalf of the appellants which argument can also not be simply ignored that the appellants, with the knowledge that the deceased was buried in a shallow grave would  have also chased Mr Hlungwane and Mr Tshabalala away when they found them busy digging in the place where the deceased body was found so to evade the possible trace.  In my view, these arguments are neither here nor there. What important is that all of these are mere speculations or conjectures which cannot sustain the method of inferential reasoning. The inferential reasoning by the Court a quo cannot in my view stand.

[21] The Court a quo further convicted the appellants on the basis that they gave different versions on some aspects of their evidence. The fact remains that even if there might have been some inconsistencies in their versions, there was no evidence at all led by the State that implicates them. In casu, there is only a suspicion that the appellants might have been involved but be as it may, the Court cannot and is not entitled to convict on a suspicion no matter how strong it is. See: S V Ralukakwe 2006 (2) SCAR 394 (SCA) at page 402 paragraph [16]. In addition, the version of the appellants cannot be said that it is palpably false or far fetched, but is, in my view reasonably probably true.

[22] In the circumstances, I am of the view that the Court a quo misdirected itself in the application of the law to the facts of this case and the conviction ought to be set aside.  The need to consider the Appeal against sentence also falls away.

[23] Consequently the following order is made:

23.1  The Appeal by both appellants succeeds;

23.2   The conviction and the resultant sentence of the appellants by the Court a quo is hereby set aside;

23.3  Immediate release of both appellants is ordered.

________________

A.M. KGOELE

JUDGE OF THE HIGH COURT

 

I agree

 

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N. GUTTA

JUDGE OF THE HIGH COURT

 

I agree

 

_________________________

T.J. DJAJE

ACTING JUDGE OF THE HIGH COURT

ATTORNEYS

 

FOR THE APPELLANT       :           Legal Aid South Africa

                                                                       Protea Office Park

                                                                       Sekame Street

                                                                       Industrial Site

                                                                       MAHIKENG

                                                                       2745

 

FOR THE RESPONDENT   :          Director of Public Prosecution

                                                                       3139 Sekame Street

                                                                       East Gallery, Megacity Complex

                                                                       Second and Third Floors

                                                                       MMABATHO

                                                                       2735

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