Kubayi v S (A829/2014) [2015] ZAGPPHC 985 (15 December 2015)

IN

THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case number: A829/2014

Date: 15/12/15

In the matter between:

MPHO

SAMUEL

KUBAYI APPELLANT

And

THE

STATE RESPONDENT

JUDGMENT

PRETORIUS J.

(1) This is an appeal against the conviction on the count of murder only, by leave of the court a quo.

(2) The appellant was charged in the High Court, Circuit Local Division of the Northern Circuit District. The appellant was convicted of murder and kidnapping on 12 May 2011 by Makgoka J. He was sentenced to 25 years' imprisonment on the count of murder and 5 years' imprisonment on the count of kidnapping. It was ordered that the sentences run concurrently. The appellant was legally represented throughout the proceedings.

THE EVIDENCE:

(3) Mr Piet Mmapitsi testified that on 15 July 2009 he had discovered the body of the deceased in a field while he was looking for cattle. She was buried in a shallow grave and he summoned the police. Ms Mdaka testified that there was a relationship between the deceased and the appellant. Ms Mdaka was the deceased's relative and they lived together. According to her the deceased left their home accompanied by the appellant, the appellant dragged the deceased to go with him, as she did not want to accompany him. After some time she phoned the appellant to find out where the deceased was and he replied that he did not know. It is common cause that the appellant fetched the deceased from her home on a regular basis and that she on occasion stayed with her brother in another village. Mr Charles Moremi was the deceased's brother and his testimony was that at some stage he had received a call from Ms Mdaka enquiring as to the whereabouts of the deceased. He, in turn, enquired from the appellant whether he knew where the deceased was and the appellant told him that he did not know.

(4) The appellant was convicted of kidnapping due to the fact that he took the deceased away against her will. This evidence does not prove that the appellant had murdered the deceased. The deceased was an unemployed person who moved from one place to another, visiting relatives.

(5) On 16 July 2009 Dr Krysztofiak performed a post mortem on the body of the deceased. His findings were:

"1. Decomposing body of a young adult Negroid female with advanced autolysis of internal organs.

2. Body presented for autopsy with the pants around the knees with exposure of the external genitalia. No definite injuries to the genital organs.

3. No definite ante-mortem injuries on the external surface of the body. Fracture of a single left rib associated with surrounding haemorrhage."

And he concluded that the case of death was:

"Undetermined due to decomposition"

(6) The further evidence was that of a pointing out by the appellant. The pointing out was ruled admissible after a trial-within-a-trial was held. The pointing out took place on 8 September 2009. The appellant presently complains that the pointing out should not have been allowed, as he was assaulted and as a result forced to make the pointing out. It is so that the appellant had an injury on his arm, but he failed to mention it to the officer doing the pointing out and only told him when the officer made enquiries as to the injury on his arm. It is set out that the officer asked: "Please tell me how you sustained those injuries?" and his reply was "Inspector Masiye injured me with handcuffs on 2009-09-04".

(7) The appellant did not rely on this injury when he was questioned and if Captain White had not inquired about the injury on his own, it would not have been mentioned. This court has carefully scrutinized and considered the evidence of all the witnesses who had testified in the trial-within-a-trial. It is clear that they were totally independent and did not know any of the facts of the case before the pointing out took place. The appellant was not a truthful witness as can be seen where he testified that he had been assaulted with a shoe on his back, which resulted in an injury. This version was never canvassed with the state witnesses and they were not called back so that this version could be put to them. The court correctly found that this had not taken place. It is even more strange that pictures were taken of his back and no mention was made of any injury on his back. The constitutional rights of the appellant was explained to him twice, before the pointing out first by Captain Venter and then by Captain White.

(8) The evidence was essentially circumstantial, where the deceased had been taken away from her home during May 2009 and her decomposed body was only found in the veld on 15 July 2009.

(9) In R v Mtembu 1950(1) SA 670 (A) at 680 Schreiner JA held:

"Circumstantial evidence, of course, rests ultimately on direct evidence and there must be a foundation of proved or probable fact from which to work. But the border-line between proof and probability is largely a matter of degree, asis the line between proof by a balance of probabilities and proof beyond reasonable doubt. Just as a number of lines of interference, none of them in itself decisive, may in their total effect lead to a moral certainty (Rex v de Villiers (1944 AD 493 at p. 508)) so, it may fairly be reasoned, a number of probabilities as to the existence of the facts from which inferences are to be drawn may suffice, provided in the result there is no reasonable doubt as to the accused's guilt." (Court's emphasis)

(10) In R v Sibanda and Others 1965(4) SA 241 (RA) at 246 Beadle CJ dealt with circumstantial evidence:

"The degree of certainty with which the individual facts must be proved in criminal cases must always depend on the probative value of the individual facts themselves. Generally speaking, when a large number of facts, taken together, point to the guilt of an accused, it is not necessary that each fact should be taken in isolation and its existence proved beyond a reasonable doubt; it is sufficient if there are reasonable grounds for

taking these facts into consideration and all the facts, taken together, prove the guilt of an accused beyond reasonable doubt." (Court's emphasis)

(11) It is evident that the court a quo took all the evidence into consideration and referred to S v Chabalala 2003(1) SACR 134 (SCA) at paragraph 15 where Heher AJA found:

"The trial court's approach to the case was, however, holistic and in this it was undoubtedly right: S v Van Aswegen2001 (2) SACR 97 (SCA). The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his 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 as to exclude any reasonable doubt about the accused's guilt. The result may prove that one scrap of evidence or one defect in the case for either party (such as the failure to call a material witness concerning an identity parade) was decisive but that can only be an ex post facto determination and a trial court (and counsel) should avoid the temptation to latch on to one (apparently) obvious aspect without assessing it in the context of the full picture presented in evidence. Once that approach is applied to the evidence in the present matter the solution becomes clear."

(12) It is trite that the court a quo is in the best position to observe witnesses and to make findings as to their demeanour and trustworthiness as witnesses. The court a quo dealt with the evidence of Ms Mdaka, Mr Moremi and the witnesses in the trial-within-a-trial comprehensively and this court cannot

fault the conclusions that the court had reached. The fact that the appellant had mentioned the deceased by a name that was unknown and did not appear on the indictment is a clear indication that he had provided this name. The appellant further explained his modus operandi in killing the deceased, which the court found "this ties in very comfortably with the proved facts".

(13) This court has considered all the evidence, the arguments by counsel and has applied the principles as set out in the above authorities.

(14) This court cannot find any misdirection by the trial court in convicting the appellant of murder.

(15) In the result, the following order is granted:

1. The appeal against the conviction is dismissed.

________

Judge C Pretorius

I agree.

Judge NM Mavundla

Judge AML Phatudi

Case number

: A829/2014

Matter heard on

: 21 August 2015

For the Appellant :

Mr LM Manzini

Instructed by :

Legal Aid Board

For the Respondent

: Adv BE Maoke

Instructed by

: Director of Public Prosecutions

Date of Judgment