S v Solomon (30/2020) [2021] ZAFSHC 239 (15 October 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

CASE NO. 30/2020

In the matter between:

THE

STATE

and

MOJALEFA

GODFREY SOLOMON

JUDGMENT BY: MATSHAYA, AJ

HEARD ON: 6,7,8 and 15 OCTOBER 2021

DELIVERED ON: 15 OCTOBER 2021

INTRODUCTION

[1] This court is sitting as a Child Justice Court as envisaged in the Child Justice Act[1] (the CJA). Initially there were 4 child offenders in this case but no.3 and 4 were discharged after closure of the state’s case in terms of section 174 of the Criminal Procedure[2] (the CPA). The trial of the youth offender no.2 was separated[3] after he failed to appear in court after closure of the defence case. Before me at this stage is Mr Mojalefa Godfrey Solomon hereinafter referred to as the youth offender. He is facing the following charges:

Count 1: Housebreaking with intent to Murder and Murder read with section 51(1) of the Criminal Law Amendment Act[4] . The state alleges that “on 12 May 2018 at or near 2051 Caleb Motshabi, Bloemfontein and within the Regional Division of the Free State, the accused did unlawfully and intentionally, in the furtherance of a common purpose, break open and enter house no.2051 Caleb Motshabi, Bloemfontein the residence of Seabata Stefaans with the intent to murder and did then and there unlawfully and intentionally kill Edwin Moses Paint, a male person.

Count 2: Contravention of section 9(1)(a) read with sections 1 and 10 of the Prevention of Organised Crime Act[5] (POCA)-GANG REATED OFFENCES. In that upon or about the same date and place mentioned in count 1, the accused unlawfully and intentionally, in the furtherance of a common purpose, actively participated in or was a member(s) of a criminal gang and wilfully, aided and abetted any criminal activity committed for the benefit of, at the direction of, or in association with any criminal gang, to wit: Housebreaking with intent to Murder and Murder as mentioned in count 1.

Alternative to count 2: Contravention of section (9)(2)(a) of POCA-Gang Related Offences. In that upon or about the same date and place mentioned in count 2, the accused did wrongfully and intentionally, in the furtherance of a common purpose, perform acts, to wit, Housebreaking with intent to Murder and Murder as mentioned in count 1 which acts were aimed at causing, bringing about, promoting or contributing towards a pattern of gang activity.”

[2] Adv Claassen from the local DPP[6]’s office appeared for the state and the youth offender is legally represented by Mr Ishmail on judicare instructions. The youth offender pleaded not guilty to all the charges. The basis of his defence is a bare denial. The following formal admissions were recorded in terms of section 220 of the CPA[7]:

(a) The identity of the deceased as Edwin Moses Paint;

(b) That his body did not sustain further injuries from the time he was killed on 12 May 2018 until the performance of the autopsy on 14 May 2018;

(c) That Dr T.L. Nkosi conducted an autopsy on the body of the deceased and his findings were recorded on Exh B;

(d) The correctness of the facts and findings of the autopsy report;

(e)The cause of death was correctly recorded as “sharp force injuries”; and

(f) The photographs taken at the scene of the incident on 12 May 2018 which were admitted as Exh C.

EVIDENCE FOR THE

STATE

[3] Mr Tshepiso Edwin Mpuru (hereinafter referred to as Tshepiso) was called as a witness in terms of section 204[8] of the CPA and testified as follows: In 2018 he resided at Caleb Motshabi location, Bloemfontein and was a member of the Romans gang as he joined in 2017. Erstwhile youth offender no.2 was a fellow gang member and also held the rank of Gang Leader. The BTK’s were a rival gang there at Caleb Motshabi. On 12 May 2018 at about 10h00 Tshepiso was walking with one Lesedi who was also a member of the Roman’s gang. The BTK’S appeared and chased them. As Tshepiso and Lesedi ran away, they managed to apprehend Lesedi and stabbed him and left him lying there on the street. The community members and about 30 members of the Roman’s gang who included the youth offender arrived where Lesedi was lying. After Lesedi was taken away by ambulance the community members gave an instruction to the Roman’s gang to go and find whoever was responsible for Lesedi’s stabbing and bring him to them.

[4] The Romans, including himself and the community members pursued a search until they saw the deceased who was a BTK member, and his 2 friends. The deceased and his friends ran away to different directions and the Romans chased them until they entered house no. 2051 Caleb Motshabi (which we now know is the house of Mr Seabata Stefaans) and locked himself inside the house which was built with corrugated iron sheets. The Romans arrived and entered inside the yard and started throwing stones at the house breaking windows while community members were standing outside the yard. The Romans were shouting, “take them out, we want to kill them”. The Romans tried to break down the house by removing iron sheets. At this stage Tshepiso was standing at the gate with one Marry who is Lesedi’s sister.

[5] Deceased eventually came out of the house running in possession of a panga trying to defend himself with it. The youth offender then tripped him and he fell on his stomach and his panga fell off. Erstwhile youth offender no.2 came and sat on top of the deceased’s waist and stabbed him on his head several times with a Rambo knife. The members of the Romans gang in general stabbed the deceased. As they were still stabbing him there was noise of police vehicle sirens and the Romans then ran away. Community members remained there. Tshepiso was pointed out by someone as one of the Romans and was arrested. He (ie, Tshepiso) then pointed out erstwhile youth offender no.2 and others including the youth offender before court to the police as part of the people who stabbed the deceased. It is admitted that the deceased died as a result of the injuries that he sustained during the said attack. During cross examination it was denied to him that the youth offender tripped the deceased.

[6] Thabang Edward Leepile (hereinafter referred to as Thabang) testified that on 12 May 2018 he was walking with the deceased who was his friend and one Tankiso on the street at Caleb Motshabi. His (ie, Thabang’s) brother belonged to the BTK Gang. As they were still walking a group of Romans which was led by amongst others, erstwhile youth offender no.2 who was in possession of a Rambo knife, appeared and attacked them. The gang chased them and they ran to Tankiso’s home and locked themselves inside the house which was made of corrugated iron sheets. The group of people that chased them arrived and demanded from Mr Stefaans that he should take them out of the house as they wanted to kill them. Mr Stefaans refused and the mob of people started demolishing the shack. Later, Tankiso ran out of the house first and the deceased also followed and came out of the shack running away. Thabang managed to peep from a hole that was on the corrugated iron sheet and saw erstwhile youth offender no.2 sitting on top of the deceased stabbing him continuously with a Rambo knife. Others were also attacking the deceased with pangas. When the group left, Thabang came out of the house and saw the deceased lying down. Thabang further testified that he knew youth offender no.1 but did not see him there. During cross examination, he maintained that youth offender no.2 stabbed the deceased.

[7] Mr Seabata Daniel Stefaans (hereinafter referred to as Seabata) testified as follows: On 12 May 2018 he was in his yard at address 2051 Caleb Motshabi, Bloemfontein. His house was made of corrugated iron sheets what is commonly referred to as a shack. As Seabata was still doing his chores outside the house, his son by the name of Tankiso and his (ie, Tankiso’s) 2 friends ran past him. A group of community members arrived. Tshepiso and another lady whom he pointed out in court as erstwhile youth offender no.3 were the first ones to arrive from that group and they demanded that Seabata should take out the people who were inside his house. Seabata did not know that there were people who were inside his house since he did not see them entering the house. Seabata told them to leave his house. His son Tankiso, came out of the house and ran away.

[8] A group of community members arrived and started throwing stones at the house, breaking windows with stones, removing corrugated iron sheets thereby demolishing his shack. Deceased who was apparently inside the house came running charging at the mob with a panga. A certain person whom he could not identify from the community members tripped the deceased and deceased fell on his stomach and his panga also fell down. Another person whom he also could not identify sat on the deceased’s waist and stabbed him with a Rambo knife at the back on his shoulders several times. As the community members were leaving his yard, erstwhile youth offender no.3 picked up a stone and threw it at deceased’s head and crashed his skull and then left. A police van arrived and Seabata pointed out Tshepiso as one of the people who were in his yard and Tshepiso was arrested. The reason he could not identify the people who attacked the deceased was because they were facing the opposite direction and the mob were unknown people to him who were from another zone.

[9] During cross examination, he denied that his shack had a hole on the wall and explained that his shack was covered with boards inside and therefore, there was no way that Thabang could see what was happening outside the house as he was just hiding inside.

THE DEFENCE CASE

[10] The youth offender testified that as on 12 May 2018 he resided at Caleb Motshabi. He denied being a member of a gang. On the morning of the said date he went with his friends to the soccer field to play football. About 45 minutes later, he heard whistles which he assumed were raising an alarm for the community as was the practise when there was a break-in, in one of the houses. The group of people passed the soccer field. Later on, they decided to follow that group of people who apparently went to Seabata’s house. The youth offender just saw the deceased’s body lying down already covered. He did not see what happened to the deceased. He denied tripping the deceased.

[11] After closure of the defence case, Ms Claassen addressed the court. In a nutshell she submitted that the state had proved its case beyond reasonable doubt and prayed for conviction on both counts. She cited several authorities in support of her submissions. On the contrary, Mr Ishmail prayed for an acquittal. The essence of his submissions is that the youth offender’s defence is reasonably possibly true and should be accepted and acquitted.

THE ISSUES

[12] It is not in dispute that the deceased was attacked by a group of people with various weapons including knives and pangas. It is also not in dispute that the youth offender was present at the scene or the vicinity where the deceased was attacked. It is also not in dispute that the deceased sustained serious injuries during the attack and the cause of his death is ‘sharp force injuries’. The issue to be decided is whether the youth offender is one of the people who attacked the deceased and caused his death acting in furtherance of common purpose with the Romans.

THE LAW

[13] In Tshiki v The State[9], Mbata JA restated the onus of proof in criminal cases as follows in paragraph 13:

“In criminal proceedings, the state bears the onus to prove the accused’s guilt beyond a reasonable doubt. The accused’s version cannot be rejected only on the basis that it is improbable, but only once the trial court found, on credible evidence, that the explanation is false beyond a reasonable doubt. The corollary is that, if the accused’s version is reasonably possibly true, the accused is entitled to an acquittal.”

ANALYSIS

[14] I have to state from the onset that Seabata and Thabang did not implicate the youth offender. To me, this was an indication of honesty on their part and therefore, their evidence cannot be faulted. I am satisfied that they were credible witnesses.

[15] This means that this court is now left with the evidence of the accomplice witness ie, Tshepiso. It is trite that the evidence of an accomplice witness has to be approached by the courts with caution. It is well to remind oneself of the inherent dangers when dealing with such evidence. The following passage from the case of S v HLAPEZULA AND OTHERS[10], becomes relevant:

“It is well settled that the testimony of an accomplice requires particular scrutiny because of the cumulative effect of the following factors. 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. Accordingly, even where sec. 257 of the Code has been satisfied, there has grown up a cautionary rule of practice requiring (a) recognition by the trial Court of the foregoing dangers, and (b) the safeguard of some factor reducing the risk of a wrong conviction, such as corroboration implicating the accused in the commission of the offence, or the absence of gainsaying evidence from him, or his mendacity as a witness, or the implication by the accomplice of someone near and dear to him; see in particular R v Ncanana , 1948 (4) SA 399 (AD) at pp. 405 - 6; R v Gumede , 1949 (3) SA 749 (AD) at p. 758; R v Nqamtweni and Another , 1959 (1) SA 894 (AD) at pp. 897G - 898D. Satisfaction of the cautionary rule does not necessarily warrant a conviction, for the ultimate requirement is proof beyond reasonable doubt, and this depends upon an appraisal of all the evidence and the degree of the safeguard aforementioned.”

[16] Even though Tshepiso was an accomplice witness, his testimony was corroborated by that of Seabata on the following aspects:

(i) That on 12 May 2018 there was a group of Roman’s gang that chased Tshepiso and the deceased and Tshepiso locked himself inside Sebata’s house;

(ii) That the said group demanded from Seabata to take out the people who were inside his house who included the deceased shouting that they wanted to kill them;

(iii) That upon Seabata’s refusal to release them, the group of people started demolishing the shack, throwing stones at the windows and removing corrugated iron sheets;

(iv) That the deceased ran outside the house and someone tripped him and he fell down; and

(v) That after he fell down, someone sat on top of the deceased’s waist and stabbed him continuously on his back. A number of other people attacked the deceased with weapons whilst he was lying down on his stomach.

[17] In my view, there are various other aspects of Tshepiso’s testimony which indicate that he was an honest witness. These are inter alia, the following:

(a) That Tshepiso did not exaggerate the alleged role of the youth offender as he testified that he only tripped the deceased;

(b) Tshepiso testified that he only saw erstwhile youth offender no.4 when he was running away carrying a knife but did not see him doing anything with the said knife;

(c) Tshepiso also testified that erstwhile offender no.3 only shouted, ‘kill him, kill him’, and nothing more.

[18] If Tshepiso was out there to implicate anyone and or in a desperate bid to exonerate himself, he was at liberty to exaggerate the alleged roles alluded to above, but did not. In view of the above praises on Tshepiso, the argument by Mr. Ishmail that his evidence cannot be trusted is without merit and cannot be sustained. This is so because I cannot find anything on the evidence to support that proposition. On the contrary, I find that Tshepiso was a credible witness. He did not contradict himself in all the material aspects of the case and his testimony is corroborated on material aspects by that of Seabata even though Seabata could not put a face on the alleged perpetrators. To buttress this point, the evidence of Tshepiso is also corroborated to a great extent by the autopsy report which indicates some stab wounds on the deceased’s head, back and shoulder area.

[19] It is now apparent that the evidence of Tshepiso is that of a single witness pertaining to the identity of the deceased’s assailants. It is trite that evidence of a single witness must be treated by the courts with caution and the evidence has to be clear and satisfactory in every material respect for it to stand. See R v Mokoena[11]. Furthermore, in view of section 208 of the CPA[12], our law does not necessarily require corroboration before a court may convict based on the evidence of a single witness. On the face of the reasons that have already been alluded to above pertaining to the reliability of Tshepiso’s evidence, one may be attempted to believe that his evidence was clear and satisfactory in every material respect whereas it was not. I shall elaborate on this aspect hereunder when I deal with his evidence of identification.

[20] Tshepiso’s evidence involves the identity of the alleged perpetrators and therefore, another cautionary rule is applicable so that the reliability of his evidence of identification can be tested. See S v Mthethwa[13]. During cross examination, Mr. Ishmail asked Tshepiso at length regarding how he identified the youth offender? His main response was that they stayed at same street at the time, played soccer together and particularly, that the youth offender had a Plaster of Paris (POP) on his

arm even though he did not have a sling. He went further to explain that at the time the youth offender was arrested, they were handcuffed together and the youth offender was cuffed on the arm that had no POP. That having been said, has to be contrasted with the concession that the state made on record to the effect that indeed the youth offender did not have a POP at the time of his arrest. Again, I shall revert to this aspect later. It suffices to conclude that Tshepiso’s evidence of identification was not reliable.

[21] I now turn to analyze the youth offender’s defence. To set the tone, I deem it prudent to refer to the case of S v SHACKELL[14] where Brandt AJA (as he then was), stated the following:

“Equally trite is the observation that, in view of this standard of proof in a criminal case, a court does not have to be convinced that every detail of an accused's version is true. If the accused's version is reasonably possibly true in substance the court must decide the matter on the acceptance of that version. Of course it is permissible to test the accused's version against the inherent probabilities. But it cannot be rejected merely because it is improbable; it can only be rejected on the basis of inherent probabilities if it can be said to be so improbable that it cannot reasonably possibly be true.”

[22] The youth offender was consistent in his testimony that he did not take part in the attack against the deceased in any form. He did not contradict himself in all the material aspects of the case. He remained firm in his version even during cross examination. He maintained that he did not have a POP on his arm as against the testimony of Tshepiso who had emphasized that this POP was the major identifying feature pertaining to the youth offender even though he did not say it in so many words. I do not doubt the youth offender’s credibility at all. The concession by the state on the aspect of POP becomes very crucial because it creates serious doubts about the reliability of Tshepiso’s identification of the youth offender. That being the case, clearly there must have been a bona fide mistake on the part of Tshepiso when he placed the youth offender at the crime scene including the alleged tripping of the deceased. In my view, such a mistake is consistent with the fact that there was a huge crowd of people in a mobile scene.

[23] In respect of count no.2, this court is faced with the word of Tshepiso against that of the youth offender. Tshepiso could not bring any independent evidence to support his allegations that the youth offender was a gang member. It was his testimony that there were many people who were Roman’s gang members but neither of them nor a community member was called to testify about his alleged gang involvement. For these reasons, I find that the youth offender’s version is reasonably possibly true in substance and has to enjoy the benefit of doubt.

CONCLUSION

[24] I find that the state has failed to prove its case beyond reasonable doubt against the youth offender and I hereby make the following order:

ORDER

1. The youth offender is acquitted on both counts, including the alternative to count no.2.

M.M. MATSHAYA, AJ

On behalf of the State : Adv Claasen

Instructed by : Deputy Director of Public Prosecutions

Bloemfontein

On behalf of the child offender: Mr Ismail

Instructed by : Legal Aid South Africa

[1] See section 1 read with 49(2) of the CJA.

[2] Act 51 of 1977.

[3] See section 157(2) of the CPA.

[4] Act 105 of 1997.

[5] Act 121 of 1998.

[6] Director of Public Prosecutions, Bloemfontein.

[7] Supra.

[8] Supra.

[9] (358/2019) [2020] ZASCA 92 (18 August 2020).

[10] 1965 (4) SA 439 (A), at 440 para D-H.

[11] 1932 OPD 79, at 81.

[12] CPA, supra.

[13] 1972 (3) SA 766 (A), at 768A-C.

[14] 2001 (2) SACR 185 (SCA).