Piliminta v S (A75/2022) [2023] ZAGPJHC 514 (19 May 2023)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2023 >> [2023] ZAGPJHC 514 | Noteup | LawCite sino index ## Piliminta v S (A75/2022) [2023] ZAGPJHC 514 (19 May 2023) Piliminta v S (A75/2022) [2023] ZAGPJHC 514 (19 May 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2023_514.html sino date 19 May 2023 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG CASE NO: A75/2022 NOT REPORTABLE NOT OF INTEREST TO OTHER JUDGES REVISED 19.05.23 In the matter between: PILIMINTA: MARTIN APPELLANT and THE STATE RESPONDENT Neutral Citation : PILIMINTA MARTIN V THE STATE (Case no: A75/2022) [2023] ZAGPJHC  514 (19 May 2023) JUDGMENT ALLY AJ [1]  This is an appeal against the conviction of the Appellant in the Regional Court for murder as read with Section 51 (2) of Act 105 of 1997. [2]  The Appellant was granted leave to appeal on both conviction and sentence by the Court a quo . [3]  The Appellant was represented by Adv. S. Hlazo and the Respondent by Adv. M.M. Maluleke. [4]  At the beginning of the hearing, the Appellant applied for condonation for the late filing of his Heads of Argument. After due consideration was given to the application, condonation was granted. [5]  The Appellant, as stated above was arraigned in the Court a quo for murder in that he, it was alleged killed his concubine with whom he was living. [6]  The State led evidence of three witnesses who, it should be noted, did not witness the killing. [7]  The first witness, was Ms Bhebhe who lived on the property with the Appellant and knew the Appellant for approximately two months prior to the incident. Pertinent to the killing of the deceased, Ms Bhebhe testified that she had returned from her business place in Rosebank and went to fetch water in the bathroom to bath in her room which was approximately 20H00. [8]  Whilst in the bath, Ms Bhebhe testified that she heard a bang, she described it as a repeated banging on the wall and did not pay attention to it because she assumed it was as a result of her neighbours, the Appellant and the deceased, packing for the move out of the property. [9]  Approximately 10 minutes later someone, who she later identified as Roka Phatso, came knocking on her door and indicated to her that there was a problem and took her to the room of the Appellant and the deceased. She then described what she saw as well as that the deceased was cold. I will return to Ms Bhebhe’s evidence later when dealing with the evaluation of the State’s evidence in its totality. [10]  The next witness to testify for the State was Constable Makhubela who testified that he received a call from radio control indicating that there was a domestic dispute. His recollection was that the call came at about 21H38. On arrival at the scene of the domestic violence incident he encountered a man that said “he killed his wife and we tied him up”. [11]  He testified further that the Appellant was rowdy and was refusing to get into the police van and they had to force him into the van. At the police station he noticed that the Appellant was injured on his back and shoulders. These were bruises that he observed. [12]  The next witness for the State was Ms Ndaba, who described herself as a firefighter and paramedic and was employed by the City of Johannesburg and based at the Turfontein Service Station, Emergency Services. [13]  Ms Ndaba testified that she was the person that declared the deceased dead and explained to the Court how she arrived at that conclusion. She testified that the deceased was not cold and that blood was still coming from the mouth and nose. In her view, the death of the deceased could not have occurred more than hour before she arrived. She approximated the time to be more from 30 minutes to 45 minutes. She explained that if the deceased had died more than hour before, then the blood would have been dry and this was not the case. [14]  Ms Ndaba recorded the time of arrival at the scene to be 22H28. [15]  The next witness for the State was the investigating officer, Warrant Officer Yende. He testified and confirmed the rowdiness of the Appellant as well as that he had to be forced into the van. [16]  Warrant Officer Yende was able to describe what he observed in the room where the deceased was found. He testified as to the size of the property and his interaction with the tenants. Warrant Officer Yende estimated his arrival on the scene to be about 21H30. [17]  Any evidence collected was tagged to be sent away for analysis. [18]  The final witness for the State was the Landlord, Mr Aigbedo. Mr Aigbedo testified that the Appellant was rowdy and causing trouble in the yard. He explained that the gate of the property was always locked and one needed a key to access the property. [19]  He also testified that he had entered the room of the deceased and had seen the state of the room. The minor child of the deceased was also crying. [20]  He testified that the Appellant had been staying at the property for approximately three months before the incident. [21]  He testified of an encounter with the Appellant which occurred approximately after 17H00. His nephew intervened and indicated that they should leave the Appellant. Mr Aigbedo testified that he left the property and returned approximately 40 minutes later. He was eating when he heard people shouting that the Appellant had killed his wife. [22]  When pressed as to the time that the abovementioned shouting occurred, he indicated that it was between 18H00 and 18H30. He further explained that it was not dark as yet. [23]  It must be mentioned that Mr Aigbedo also did not witness the killing the deceased. [24]  The State tendered the evidence relating to the declaration of death, identification of the deceased, the investigator’s statement, the affidavit of the forensic officer as well as the post mortem report as exhibits which were accepted without objection. [25]  The State closed its case and the Appellant testified in his own defence. [26]  The Appellant maintained that when he arrived home from an errand in Turfontein, he found his wife, the deceased, dead. He testified that the other tenants on the property accused him of killing his wife and assaulted him. That is the gist of his evidence. [27]  The Court a quo analysed the evidence in its totality and came to the conclusion that the State had proved its case beyond a reasonable doubt. [28]  It is that conclusion that the Appellant has challenged. [29]  This Court does not deem it necessary to set out all the grounds of appeal relied on by the Appellant. The grounds of appeal form part of the application for leave to appeal [1] . [30]  The Court a quo evaluated the evidence in accordance with the law and reminded itself that the State bears the onus to prove its case beyond reasonable doubt as well as the trite principles set out in the locus classicus case of R v Blom 1939 AD 188 at 202: “ (1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn. (2) The proved facts should be such that they exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.” [31] It is also trite that an Appeal Court is loath to overturn a trial Court’s findings of fact, unless they are shown to be vitiated by a material misdirection or are shown by the record to be wrong [2] . [32]  The trial Court relied heavily on the evidence of Ms Bhebhe, the second witness for the State [3] . The question that arises in this regard is whether the evidence of Ms Bhebhe together with the evidence of the other State witnesses founded a conclusion that the evidence was corroborated in all material respects. [33]  An important aspect in my view, is the timeline of the killing of the deceased. This issue does not seem to have been sufficiently dealt with and evaluated. Ms Bhebhe states categorically that the deceased would have been killed approximately 20H00. Ms Bhebhe was adamant that she remembers the time of 20H00 because she had to take her medication by 19H45 [4] . [34]  The reason for raising the timeline, is that Ms Ndaba, the firefighter paramedic recorded the time she arrived at the scene and indicated to the Court that the injuries to the deceased would have been sustained 30(thirty) to 45(forty-five) minutes before she arrived and not more than an hour. She furthermore indicated that if it was more than an hour, the blood of the deceased would have been dry. She recorded her time of arrival as 22H28. [5] [35]  Objectively speaking, the timeline of Ms Bhebhe and that of Ms Ndaba do not correlate, and this leads one to the conclusion that one of the witnesses was mistaken about the timeline. This situation leads one to the further question as to whether there were other facts that the witness could be mistaken about. It should be noted that the timeline of the killing of the deceased appears to differ with all the witnesses called by the State. [36]  In this regard Ms Bhebhe puts the time at just after 20H00, Ms Ndaba on the objective evidence puts the time of the infliction of the wounds sustained by the deceased at the latest at approximately 21H15 and Mr Aigbedo, the landlord puts the time at between 18H00 and 18H30. It is clear, that whilst witnesses can differ on immaterial issues, in my view, the timeline is a material aspect of the evidence and the Court a quo not giving due consideration to same is a misdirection. [37]  The fact that there has been a misdirection, is in my view, no reason, on that basis alone to set aside the conviction of the Appellant. [38]  The misdirection, however, does permit an appeal Court to consider the reasoning of the trial Court afresh and determine whether on the evidence before the trial Court, the State has proven it case beyond reasonable doubt. An accused should be convicted if the Court finds not only that his version is improbable, but also that it is false beyond reasonable doubt. It is not necessary for a Court to believe an accused person in order to acquit him or her. [6] [39]  The Appellant’s version is that he arrived home and found his wife dead. Is this version, reasonably possibly true taking into account the totality of the evidence, which evidence is circumstantial in nature? In my view, taking into account the principles set out in R v Blom, the inference of guilt of the Appellant is not the only inference to be drawn from the facts of this case. If so, then the guilt of the Appellant has not been proven beyond reasonable doubt. [40]  It is important to mention, that the investigation of this case appears to be shoddy and the Magistrate made mention of this to the Investigating Officer during his testimony. To mention a few aspects: 40.1. the scissors found by the Pathologist [7] , appears not to have been taken for forensic testing or no evidence was led in this regard; 40.2. the landlord, Mr Aigbedo, makes mention of a knife that was in possession of the Appellant [8] and was taken from him. There appears to be no mention of this knife by the investigating officer and more pertinently, no forensic testing of same. [41]  A further aspect that is disconcerting in this case is that Ms Roka Phatso, who could have enlightened the Court as to what she observed before she came to fetch Ms Bhebhe. Her evidence, in my view, would have gone a long way, if not, the last link in the chain of evidence against the Appellant. Her absence, it must be said, makes the case against the Appellant to be one of high suspicion, rather than beyond reasonable doubt. [42]  Accordingly, as a result of the reasoning above, the conviction of the Appellant must be set aside and the Appellant is entitled to a not guilty verdict. It follows further that the appeal against sentence must also be upheld. [43]  Accordingly, the following Order is made: a).  The appeal against both the conviction and sentence is upheld; b).  The conviction and sentence is set aside. c).  Resultantly, the Appellant is to be forthwith released from custody. G ALLY ACTING JUDGE OF THE HIGH COURT GAUTENG DIVISION OF THE HIGH COURT JOHANNESBURG I concur C I MOOSA JUDGE OF THE HIGH COURT GAUTENG DIVISION OF THE HIGH COURT JOHANNESBURG Delivered:  This judgement was prepared and authored by the Judge whose name is reflected and is handed down in Court and circulated electronically by uploading it to the electronic file of this matter on CaseLines.  The date for hand-down is deemed to be 19 May 2023 . Date of hearing: 30 January 2023 Date of judgment: 19 May 2023 Appearances: Counsel for the Appellant: Adv. S. HLAZO Instructed by: Legal Aid South Africa sindisah@legal-aid.co.za Counsel for the Respondent: Adv. M.M MALELEKA MMaleleka@npa.gov.za Instructed by: OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS JOHANNESBURG [1] Caselines: 006-1 – 006-3 [2] S v Naidoo & Others 2003 (1) SACR 347 SCA @ para 26 [3] Caselines: 003-231 @ para 22 [4] Caselines: 003-69 para 1-5 [5] Caselines: 003-88 @para 13 [6] S v V 2000 (1) SACR 453 SCA; S v Schackell 2001 (2) SACR SCA 185 @ para 30 [7] Caselines: 004-34 [8] Caselines: 003-139 @ para 6-9 sino noindex make_database footer start