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					                 NORTH WEST HIGH COURT, MAFIKENG

                                                   CASE NO.: CAF 01/2011

In the matter between:-

CORNELIUS NICHOLAS VAN RENSBURG                              Appellant

and

THE STATE                                                    Respondent

CRIMINAL APPEAL (FULL BENCH)


HENDRICKS J; GURA J; GUTTA J

DATE OF HEARING:                   11 FEBRUARY 2011
DATE OF JUDGMENT:                  19 AUGUST 2011

COUNSEL FOR APPELLANT:  ADV HITGE
COUNSEL FOR RESPONDENT: ADV DIKGOPO



                                JUDGMENT



GURA J

Introduction


[1]   The appellant was convicted of murder and sentenced to fifteen years
      imprisonment in Vryburg Circuit Court. His appeal is directed against
      the conviction and the resultant sentence.
                                      2



Factual Background


[2]   Initially, the appellant was charged with three counts: murder,
      kidnapping and assault. In the first two counts the victim is Odisang
      Samuel Gaoshubelwe (Odisang) and the date of the commission of the
      alleged offence is 14 June 2005. The complainant in the last count is
      Gaotsiwe Shadrack Mokoto (Mokoto).        He is alleged to have been
      assaulted (according to the indictment), on 15 June 2005, i.e. the day
      subsequent to the commission of the offences in the first and the second
      counts.


[3]   The first witness for the State is Ms Kgalalelo Tlhako (Kgalalelo). She
      parted with her husband, Odisang, on Thursday, 9 June 2005 at Amalia
      when he was going to Vryburg. He was supposed to collect his motor
      vehicle from a certain White man at Vryburg.      From there, he was
      supposed to go to his children at Mokgopela where he would spend the
      night.


[4]   On Monday she got a report that he did not arrive at home (Mokgopela).
      The subsequent day, she reported his disappearance to the police. She
      was then asked to come back on Thursday when the police finally took
      her statement. Thereafter the police came to her and asked her the
      description of the clothing which Odisang had on when they parted. She
      supplied this information.


[5]   About six months after his disappearance, Kgalalelo and her relatives
      were called to a mortuary at Vryburg where they were asked to identify
      some human remains (bones). These bones were covered with the
      clothes which Odisang had on when he was last seen by his wife.
                                       3

      These are a navy woollen hat; a T-shirt with white and blue stripes; a
      lumbar jacket which is navy and khakhi in colour; a pair of navy trousers
      and a pair of light brown shoes. His red and black Nokia cellphone as
      well as his wallet were also there. His cellphone was not given back to
      Kgalalelo.   A blood sample was drawn from Odisang’s brother, Mac
      Gaoshubelwe and from his (Odisang’s) child, Nonofo Tlhako.


[6]   The following evidence emerged during cross-examination. Initially the
      appellant was charged together with two Black people, Moopelwa and
      Lesego. However at some stage the case was provisionally withdrawn.
      Although Kgalalelo was present when a blood sample was extracted
      from her son, Bonolo, she was not present when blood was drawn from
      her brother-in law, Odisang’s brother. According to Odisang’s identity
      document, he was born on 6 May 1956.


[7]   The next witness was Lesego Mokalaneng (Lesego).                 At the
      commencement of his testimony he was warned to tell the truth in terms
      of Section 204 of the Criminal Procedure Act, 51 of 1977. What follows
      is his account of the incident which happened at the appellant’s house,
      No.191 McKenzie Street, Vryburg. In the morning of 9 June 2005 he
      and one Piet were busy working at the appellant’s house, loading some
      iron bars. A certain male person arrived there intending to buy a motor
      vehicle which was on those premises. After they had inspected it, he
      indicated that he was interested to buy it. Both of them (the appellant
      and that stranger) got into the car because he wanted to test – drive it.
      The appellant drove and they departed from that house.


[8]   On their return, they entered the appellant’s office (on the same
      premises) and discussed money matters. Thereafter they walked to the
      vehicle and then to the storeroom.        Whilst they were inside the
                                       4

      storeroom however, an argument developed between them.              They
      started to fight, first with bare hands, they wrestled, then the appellant
      struck him with a plank – twice.      They came out of the storeroom
      fighting. The appellant then got hold of him and tied him to a tree with a
      nylon rope. Lesego and Piet then went to fetch diesel at Mam’s garage
      and on their return the man was still tied to the tree, crying.     They
      knocked off and went home, leaving the victim there.


[9]   When Lesego came to work at the appellant’s premises on the
      subsequent day, the man was no longer there.


[10] About one year later, Lesego and Piet Moapelo (Piet) were charged with
      murder. After appearing twice in the Magistrate’s Court of Vryburg, the
      case was withdrawn.


[11] Although he told the police that he started to work for the appellant late
      June 2005, Lesego did not know exactly when did he start to work there
      because he is illiterate. When the police met him at the tarred road, they
      threatened him. Despite that, he refused to make a statement about
      something which he did not know. However, he ended up making the
      statement against his will because they threatened to come back again.
      After that day, the police did come to him at Paposane village, they took
      him to Mafikeng where he made a statement because he was being
      threatened by the police.


[12] The following information was elicited during cross-examination. At the
      beginning of the year 2006 he was arrested and detained for four days
      in connection with this very same case wherein the appellant is involved.
      Subsequent to that he made a statement to an attorney, Mr Van Zyl,
      because he was forced to make it. It was made on 29 September 2008
                                     5

at the attorney’s office; they were two – Lesego and the attorney in the
office at that time. What follows is a summarised version of that
statement:


12.1    The police asked him if he knows about a man who was tied to a tree at
Nick Van Rensburg’s premises. His answer was that he knew nothing about
that.


12.2    The police warned him that if he did not tell them they would lock him
up at Mafikeng. They insisted that he must tell them how Nick Van Rensburg
fastened a man to a tree. They threatened him and said he should say that he
saw that man being fastened to a tree.


12.3    He was afraid because of the allegation that he would be locked up at
Mafikeng. He then gave up and told the police that he saw a person tied to a
tree with a rope (lyn). He just told the police what they had told him to say that
the man was then untied from the tree and loaded onto the Ford bakkie. He
then said the van then drove away.


12.4    On their insistence, he told them that when the bakkie returned, he had
knocked off and was not present at Nick’s place and that he never saw that
man again.


12.5    The police asked him if the man took out any money to buy the van. He
had to answer by saying that they first tested the vehicle. He told them that he
did not know if that man paid


12.6    The police then showed him a photo of the corpse of a Black man and
he told them that he neither knew him nor that he ever saw him before.


12.7    The statement was not read over to him. Because he is illiterate, when
he was instructed to append his thumb print on it, he refused.           He only
complied after being threatened with detention.
                                        6

     12.8   He is afraid of the police because they intimidate him and they
     instructed him to make statements the contents of which have been dictated
     by them. He has never seen a person being tied to a tree. That is the end of
     the statement to Mr Van Zyl.


[13] During cross-examination it was put to Lesego that in June 2005 he was
     not working for the appellant and that he indeed started to work for him
     in August 2005 and he confirmed that. He testified further that on 17
     August 2006 the appellant made some renovations on the premises. He
     further confirmed the version of the appellant that no person came there
     in June 2005 to buy a bakkie because at that time he (appellant) did not
     own a bakkie. He further confirmed the version of the appellant that he
     never tied any person to a tree at his yard. He insisted that contrary to
     his evidence in chief, the appellant never assaulted any person. Later,
     (still during cross-examination) he somersaulted and said that indeed his
     evidence in chief against the appellant was a correct version of the
     events at the appellant’s house.


[14] During re-examination by the prosecuting counsel, Lesego first denied
     that the police ever took a statement from him.        Later however, he
     admitted that he made a statement to the police at Mafikeng. Later he
     said that in fact he never made that statement to the police but that they
     instructed him to sign a blank document by means of a thumb print.
     Later he stated that in fact when he arrived at Mafikeng police station,
     he found that the police had already written down a statement and all
     that he was then requested to do was to put his thumb print on it. That
     is the end of Lesego’s tale.


[15] The State then called a police officer, Shabalala, to prove that Lesego
     was a liar. He testified that he is the one who, on 5 June 2008, took
                                       7

     down Lesego’s statement at Mafikeng. According to him, Lesego made
     it freely and voluntarily and without anyone threatening him.


[16] Mr James Modise testified that on a date which he could not remember,
     and whilst herding his employer’s cattle in a camp, between Schweizer-
     Reneke and Sotosmart, he saw the bones of a human being under a
     tree. There was also a cellphone there.


[17] Mr Shadrack Mokoto (Mokoto) testified to the following effect:        The
     appellant’s yard is divided into two; the first portion is where there is a
     house for an old man, the second one is where the appellant’s house
     and garage are situated. The appellant’s stand is No.191 and that of his
     neighbour 189 McKenzie Street, Vryburg. The two properties have been
     divided by a concrete wall which has a gate.


[18] On 9 June 2005 Mokoto was painting the house at No.189. Before he
     arrived at that house that morning, he met Odisang who was saying that
     he was going to house No.191 to see a White man because he wanted
     to buy a vehicle from him. Whilst he (Mokoto) was on the stepladder
     busy painting the house, he heard someone crying at No.191. From
     there he could see that it was Odisang who was being pulled from the
     storeroom by two Black people and a White man. One of those people
     was Piet and the White person was the appellant. They then tied him to
     a tree with a rope.


[19] Mokoto then dismounted the stepladder and went to stand at the gate
     which is between the two properties. He was now about six paces away
     from Odisang who is his aunt’s son. He did talk to him.          When he
     knocked off duty that day, Mokoto left his cousin still tied to the tree in
     the appellant’s yard. That was his last time to see him.
                                       8



[20] He described his clothing as follows: a white T-shirt with a blue stripe; a
     fawn lumbar jacket; a blue woollen hat; a navy blue pair of trousers and
     a fawn pair of shoes.


[21] The subsequent day he met Piet at the appellant’s house and he (Piet)
     requested him for his assistance to load iron bars on the vehicle in order
     to convey them to Ganyesa. He agreed to that and they travelled to
     what he thought would be Ganyesa. However, instead of stopping at
     Ganyesa, they drove to Pomfret. They travelled in two vehicles with
     some White people including the appellant.


[22] After passing Pomfret, they stopped at a forest with the purpose of
     making a braai.     However, after the fire was made, the White men
     started to assault the Black men. Two of them paid attention to Mokoto
     and demanded from him to tell them “the truth which I know”. When he
     said that he knew of no particular truth, he got clenched fists blows from
     the two. In defence, he cut one of them with a knife. They grabbed him
     with the polo neck jersey which he had on. He broke loose and instead
     left it (jersey) in their hands. He took to his heels. The appellant is not
     one of the two men who assaulted him.


[23] Before cross-examination of Mokoto, an inspection in loco was
     conducted at the appellant’s house, No.191 McKenzie Street, Vryburg.
     The following are some of the findings consequent upon such
     inspection.   There is a tree at house No.191 which is next to the
     storeroom. This tree is the same as the one which is depicted on photos
     No.3 and 4 of the photo album. This is the tree to which Odisang was
     tied. The exact place where Odisang was tied to this tree is on the
     south-westerly direction of the tree, between the door of the storeroom
                                      9

     and the tree. There is a fowl run which is attached to the storeroom.
     The concrete wall between the two properties has since been replaced
     with a fence. The concrete wall was about half a meter high (when it still
     existed). There is another tree, the Kareeboom, on the right hand side
     of the storeroom. This storeroom is the one in which the fight between
     the two men started.


[24] House No.189 McKenzie Street (which is the house of the appellant’s
     neighbour) was also inspected. Mokoto pointed to this house (No.189)
     as the one which he was painting on the date of this incident. This is the
     same property which is depicted on photo No.12. Mokoto climbed on a
     stepladder next to the house (No.189) to indicate where he was painting
     when he saw Odisang being tied to a tree. The finding was that his
     head was on the same level as the window on photo 12. The estimated
     distance from this place (point A – where he was painting) to the tree
     where Odisang was chained (point B) is 42 paces (as the crow flies).
     Between point A and B there is a building, the Kareeboom and a
     veranda. That is the end of the evidence relating to the inspection in
     loco.


[25] Under cross-examination, Mokoto said that the small house i.e. the
     brown structure and the veranda were not there (between point A and B)
     during this incident. He stated that even the photos before court do not
     depict any of the two structures (the photos were taken on 11 February
     2006). He also denied that the “afdak” was there on the day of the
     incident as well as the date when the scene was photographed. Later
     he conceded however that photo 11 depicted the “afdak” and the
     veranda but maintained that he never saw them when the place was
     photographed.    As at the date of inspection in loco, the Kareeboom
     could have been 3 metres high.
                                         10



[26] After the police took down his statement at Vryburg Police Station, he
     does not remember whether it was read over to him. Whereas in his
     evidence in chief he said that this incident took place on 9 June 2005, in
     the statement to the police he said it was on 14 June 2005. On a day
     subsequent to the incident (where he saw Odisang tied to a tree) he
     reported the matter to the police.


[27] The investigator of this case, Inspector Mothoagae testified that after the
     bones were found in the camp, a blood sample was taken from
     Odisang’s child. Some tissues were taken from the bones and teeth of
     the body which was found in the veld. The purpose of all this was to
     determine if the bones were those of Odisang. According to Mothoagae,
     scientific tests proved that indeed the bones were his.


[28] Exhibit B contains the forensic results of entomological specimen tests
     conducted on the tissue from the body of the deceased. Dr Mansell, the
     entomologist, estimated that the deceased may have died some two to
     three months prior to the day on which he was discovered (3 February
     2006). He (Mansell) concluded:
           “. . . However, because the body had been completely exposed, and the area
           is usually fairly arid, decomposition may have taken place more quickly than
           in other areas. This would have been conducive to rapid development of the
           flies.”


[29] Professor Raubenheimer analysed the specimen of the deceased’s
     teeth in order to determine his age. His conclusion is that he should
     have been between 60 and 65 years old. His findings are contained in
     exhibit C.
                                            11

[30] A senior Forensic Analyst from the Biological Unit of the Forensic
     Science Laboratory prepared a report (as per exhibit J) which was
     handed in, in terms of Section 212 of the Criminal Procedure Act. After
     analysing the DNA tissues which were obtained from the deceased, she
     made the following findings:


           “Given the DNA results the donor of the teeth sample (FSC-360870) “Exhibit
           C” has a 200 times bigger chance, at being the biological father of the child
           “02D4AD1992XX” (N HLAKO), than any other randomly chosen individual
           within the specified population group . . .”.


     Her conclusion was therefore that the probability of paternity was
     99.50%.


[31] After the close of the State case the appellant testified and called three
     witnesses. He denies that he ever saw the deceased or that he ever
     assaulted or fastened him to a tree or killed him. His evidence is to the
     effect that he and his wife keep a diary of daily events. The diary served
     as exhibit L in this trial. He referred to three dates in the diary which, he
     says, are important for him in this case. The following are the entries in
     the diary which he confirmed. On 9 June 2005 he was at Kuruman
     where he was trying to remove tools from a mechanical drill. He spent
     the whole day there. The same applies to the subsequent day, 10 June
     2005. He says that he was with his workers (“Piet hulle”).


[32] On 15 August 2005, Lesego started to work for him and it was also on
     that day that he bought the mechanical drill. He denied that Lesego was
     at his premises either on 9 or 14 June 2005. On 10 September 2005 he
     bought a Ford bakkie. But he never offered it to anyone for sale, neither
     did anyone test-drive it.
                                      12



[33] He denied that the “motorhuis” was smaller than it was now. According
     to him, the only thing that changed in that structure was the door
     because he wanted to change it (garage) into a living flat. He testified
     that the Kareeboom was of the same size as at June 2005. He denied
     ever conveying Mokoto and others to Pomfret as he alleged. He said
     that Mokoto’s wife once worked for them for few months and may have
     given her husband the description of the appellant’s premises.


[34] Mr Willem Bester (Willem) testified to the following effect: On 17 April
     2009 he photographed the appellant’s premises and he also took an
     aerial photo of that place on the instructions of the appellant. He knows
     stands No.191 and 189 for more than 30 years. The garage, which has
     since been turned into a flat, has been of the same height since he knew
     that place. The only thing which was altered was the door. The trees in
     that yard have been of the same height all along.          There are many
     obstructions between point A and B in so much that no one who is at
     point A may be able to see at point B.


[35] Mr Van der Walt is 77 years old and he testified that he has been
     staying at the appellant’s premises since 1994. On 9 June 2005 he was
     on the premises and no person was ever tied to a tree there. The
     present flat was originally a garage but it was changed.


[36] The last witness was Mr Karel Bester (Karel) who testified that house
     No.189 McKenzie Street belongs to his late father.            In 2004 the
     appellant was a tenant at No.189; his landlord being Karel. During 2005
     Mokoto was never employed to paint that house.
                                            13

The issues


[37] The only issue is whether the State has proved beyond reasonable
     doubt that the appellant killed Odisang.              An answer to this question
     depends on yet another inquiry whether the credibility finding of the trial
     court on Lesego and Mokoto was correct.


The Law


[38] The power of this Court as a court of appeal was reiterated by Zulman
     JA in Santam Bpk v Biddulph 2004 (5) SA 586 (SCA) at 589 par.5 as
     follows:
           “whilst a Court of appeal is generally reluctant to disturb findings which
           depend on credibility it is trite that it will do so where such findings are plainly
           wrong (R v Dhlumayo and Another 1948 (2) SA 677 (A) at 706). This is
           especially so where the reasons given for the finding are seriously flawed.
           Overemphasis of the advantages which a trial Court enjoys is to be avoided .
           . . It is equally true that findings of credibility cannot be judged in isolation,
           but requires to be considered in the light of proven facts and the probabilities
           of the matter under consideration.”


[39] I think it is apposite to set out the approach which a court should adopt
     where a witness’ evidence bristles with contradictions. The reason for
     this will become clear later. I quote from the headnote of S v Mfaladiso
     en Andere 2003 (1) SACR 583 (HHA):


           “The juridical approach to contradictions between two witnesses and
           contradictions between the versions of the same witness (such as, inter alia,
           between her or his viva voce evidence and a previous statement) is, in
           principle (even if not in degree), identical. Indeed, in neither case is the aim
           to prove which of the versions is correct, but to satisfy oneself that the witness
           could err, either because of a defective recollection or because of dishonesty.
                                           14

           The mere fact that it is evident that there are self-contradictions must be
           approached with caution by a court. Firstly, it must be carefully determined
           what the witnesses actually meant to say on each occasion, in order to
           determine whether there is an actual contradiction and what is the precise
           nature thereof. In this regard the adjudicator of fact must keep in mind that a
           previous statement is not taken down by means of cross-examination, that
           there may be language and cultural differences between the witness and the
           person taking down the statement which can stand in the way of what
           precisely was meant, and that the person giving the statement is seldom, if
           ever, asked by the police officer to explain their statement in detail. Secondly,
           it must be kept in mind that not every error by a witness and not every
           contradiction or deviation affects the credibility of a witness. Non-material
           deviations are not necessarily relevant. Thirdly, the contradictory versions
           must be considered and evaluated on a holistic basis. The circumstances
           under which the versions were made, the proven reasons for the
           contradictions, the actual effect of the contradictions with regard to the
           reliability and credibility of the witness, the question whether the witness was
           given a sufficient opportunity to explain the contradictions – and the quality of
           the explanations – and the connection between the contradictions and the
           rest of the witness’ evidence, amongst other factors, to be taken into
           consideration and weighed up. Lastly, there is the final task of the trial Judge,
           namely to weigh up the previous statement against the viva voce evidence, to
           consider all the evidence and to decide whether it is reliable or not and to
           decide whether the truth has been told, despite any shortcomings.”


Evaluation of evidence


[40] The trial court found that Lesego was not an impressive witness at all;
     he was sometimes evasive when he had to respond to questions; in
     most instances, it was difficult to understand what he wanted to say and
     he appeared to have been frightened especially after his second
     statement was produced. (The second statement is the one which he
     made to an attorney). The court then concluded “Because of these two
                                            15

     statements, the credibility of this witness as correctly conceded by the
     State leaves much to be desired.” Despite this finding, (and, relying on
     this passage from S v Govender and Others 2006 (1) SACR 322 (EC)
     at 323d
           “Even where it was concluded that a witness was being untruthful in his or her
           attempts to explain contradictions, it did not mean that all that witness’
           evidence should be rejected.”)
     the court found that Lesego had corroborated Mokoto in relation to the
     alleged assault on Odisang.


[41] The court made another finding that pursuant to the inspection in loco, it
     was clear that “the structure” between house No.189 and 191 obstructed
     the view from point A to B (that is, from where Mokoto was allegedly
     painting to the tree at which Odisang was fastened).


[42] Lesego was an accomplice and the trial court did approach his evidence
     with a measure of caution. I am however of the view that the cumulative
     effect of the contradictions in Lesego’s evidence was overlooked.
     Perhaps we should keep in mind what was stated in S v Hlapezulu and
     others 1965 (4) SA 439 (A) at 440 D – E.
           “First, he is a self-confessed criminal. Second, various considerations may
           lead him falsely to implicate the accused, for example a desire to shield the
           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.”


[43] Lesego made a statement to the police wherein he implicated the
     appellant.    Thereafter, he made a statement to an attorney (under
     circumstances which are to this court unclear) in which he disavowed
     the earlier statement. In his evidence in chief, initially, he implicated the
                                       16

     appellant in regard to the assault on Odisang, but later (still in evidence
     in chief) he testified that the police threatened him in order to make a
     statement and to tell them things which he did not know. What then are
     the things he did not know? There was only one incident in regard to
     which he had to explain to the police (and to the court) and it is the
     disappearance of Odisang.


[44] In cross-examination, he then gave more information about the “things
     which he did not know”. His statement to the attorney says exactly that.
     What is important is that whilst being cross-examined, he stood by his
     statement to the attorney; he turned against the police statement.
     Towards the end of cross-examination, he then confirmed that what
     appears in his statement to the police is the truth. However, he never
     uttered a word to say the statement to the attorney is not the truth. The
     trial court, in finding corroboration from Lesego’s evidence, relied on his
     latest version. This, in my view, is a tricky horse to ride.


[45] Lesego does not know when exactly did he start to work for the
     appellant.   For the correct date reliance has to be placed on the
     appellant’s account.


[46] In my view, Lesego was a very unreliable witness. He failed to explain
     why he had to make the statement to the attorney. All he said was that
     he was threatened. There are no details about the content and the
     source of the threat. In brief, he was a reckless liar whose evidence
     cannot be safely relied upon. One imagines what would have happened
     if the defence had not confronted him with the statement to the attorney.
     I am not surprised that when the second statement was produced, he
     was frightened. He did not want its contents to come to the attention of
     the court because it exposed the nakedness of his lies.
                                      17



[47] I am now dealing with the evidence of Mokoto. The trial court took into
     account that he testified on 17 October 2008 and was only cross-
     examined about three months later, on 19 January 2009. Although the
     court appreciated that there were some contradictions in his account, it
     was satisfied that he was not evasive and accounted for the
     contradictions. In any case, so the court found, the contradictions were
     not material at all.   Accordingly, he was found to be a credible and
     impressive witness.


[48] In his evidence in chief, Mokoto testified that Odisang was tied to a tree
     on 9 June 2005 whereas in his statement he said it was on 14 June
     2005. He was not certain how many people chained the victim to the
     tree, initially he said it was two Black people and one White man but
     later he said two White men and one Black man. His evidence in court
     is that he last saw the victim at sunset when he knocked off. However,
     he told the police that whereas initially he saw him around 11H00, but
     already around 13H00 on the same day he could not see him any longer
     in the appellant’s yard. He goes further (in his statement) that around
     that time (13H00) on 9 June 2005, he then looked around in the
     appellant’s yard but Odisang was no longer to be seen anywhere. His
     explanation is that the police made a mistake and he stood by his
     evidence in chief.


[49] The police made yet another mistake, he said, when they wrote that he
     was assaulted by the appellant in a fight that took place in the bush near
     Pomfret. This mistake led to the prosecution preferring the third count
     against the appellant. When one looks at his statement, (Exhibit K) par.
     14 and 15 it is hard to see how the police would have made such a
     mistake.
                                          18

           “14. While standing there as we got out of the bakkie and stand next to it,
           Nico said to me that I must know that I am not at Mandela’s place.


           15. He then hit me with an open hand on my face. I then fell down, and I
           immediately stand up. Nico’s friend try to kick me and I blocked the kick.”


     Throughout the statement, he refers to the appellant as Nico Van
     Rensburg or as Nico.


[50] In his evidence in chief he never testified that he reported this incident
     (of 9 June 2005 about Odisang) to the police the subsequent day. In
     fact he said when he arrived there the subsequent day, they drove away
     to deliver iron bars but the trip ended in a bush fight. He fled for the
     whole night thereafter. We should bear in mind that Odisang was his
     cousin. In cross-examination he testified that a day after he saw the
     victim at the appellant’s yard, he reported this incident to the police. My
     view is that he could not have reported to the police on 10 June 2005
     because when he went to house No.189 that morning, he never knew
     whether or not Odisang was still there. Only on his arrival at No.191 did
     he notice that he was not there. From that stage, he left the appellant’s
     place when they were travelling to Pomfret.


[51] What is interesting is that his statement to the police is dated 3
     November 2005, some five months after the alleged incident. In this
     statement he tells of the incident about Odisang at the appellant’s house
     and about their aborted trip to Pomfret. It is therefore clear that he
     reported for the first time to the police (that Odisang was chained to a
     tree) five months later; yet this was his cousin. When he was asked why
     he waited for so long before he could report to the police he said that he
                                      19

     was afraid to go to the police because he had stabbed a White man with
     a knife and he did not know whether or not he was still alive.


[52] I am of the view that if Mokoto saw his cousin tied to a tree and being
     assaulted, he would have reported this immediately. He goes further in
     his statement to the police to say that Odisang asked him specifically to
     help him and when he (Mokoto) said to him that he could not, he asked
     him (Mokoto) to report to a lady whose name Odisang mentioned.
     Because Mokoto later forgot the name of that lady, he said, he never
     reported to anyone.


[53] In his evidence in chief, he initially said that in the morning of 9 June
     2005 he met Odisang when he was on his way to the appellant’s place
     and he did tell him that he was going there to buy a car. Later in his
     testimony, still in chief, he denied, twice, that he ever saw him that
     morning as he was going there except at the stage when he was being
     assaulted.


[54] The inspection in loco revealed that from point A one cannot see what is
     happening at point B, i.e. from house No.189 to 191 McKenzie Street.
     There are three obstructions:      the kareeboom, the veranda and a
     building. As regards the kareeboom, it is understandable that in January
     2009 it would be higher and perhaps thicker than what it was in June
     2005. Mokoto denied the existence of the two structures as they are at
     the date of the incident and at the date when the scene was
     photographed on 11 February 2006. The photos before court proved
     him wrong – at least as regards the position as at 11 February 2006.
     The trial court accepted the evidence of the defence that since 2004 the
     height of the veranda and that of the building was never increased and it
     remained as it was as at the date of the inspection in loco. In regard to
                                      20

     how these two buildings were in 2005, it is the word of Mokoto against
     that of four defence witnesses who impressed the trial court.


[55] In my view Mokoto was not a credible witness as there were numerous
     material contradictions in his evidence.


[56] In my view, this is a proper case where the court should have
     entertained a doubt as to whether the guilt of the appellant, at least on
     assault (let alone murder), have been proved beyond reasonable doubt.


Conclusion


[57] In view of the conclusion which I make in this case, it is unnecessary, in
     my view, to express any opinion as to whether or not the bones were
     that of Odisang.


[58] Consequently, the appeal is upheld, the conviction and sentence are set
     aside.




_______________
SAMKELO GURA
JUDGE OF THE HIGH COURT
                          21



I concur




_______________
R. D. HENDRICKS
JUDGE OF THE HIGH COURT




I concur




___________
N. GUTTA
JUDGE OF THE HIGH COURT

				
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