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S v Lefutso (253/2007)  ZAGPHC 467 (29 October 2008)
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IN THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION)
Registrar Ref No: 253/2007
In the matter between:
OUPA SOLOMON LEFUTSO Accused
 The accused, Mr Oupa Solomon Lefutso, has been arraigned for trial on an indictment containing charges of the murder of a Mr. Isaac Mojalefa Modise (‘the deceased”) on or about 19 June 2007 (count 1), the unlawful possession of a firearm (count 2), and the unlawful possession of ammunition (count 3).
 Adv Vilagazi appears for the State and Adv Kanyane for the accused.
 The accused pleaded not guilty to all the counts and he elected not to give a plea explanation.
 Admissions were furnished in terms of section 220 of the Criminal Procedure Act 51 of 1977 (exhibit “A”), admitting inter alia the identity of the deceased, his death on 19 June 2007 as a result of “bullet wounds to the chest and abdomen” that he sustained on 19 June 2007 at or near 1496 Tello Street, White City, district Johannesburg, that his body did not sustain further injuries from the time when the wounds were inflicted until a post mortem examination was conducted, the correctness of the facts and findings as recorded in the post mortem report (exhibit “B”) by Dr. James Blair Mwesing, and the correctness of the facts and photographs contained in exhibit “C”.
 The State called as witnesses the deceased’s sister, Ms. Gloria Modise [“Gloria”), his brother, Mr Enock Modise (“Enock”), Sgt Tinyiko Solomon Rikhotso, who was the first police officer to attend at the crime scene and who thereafter arrested the accused, and Dr. James Blair Mwesigwa, a State Pathologist.
 The undisputed evidence is that the deceased was shot in the early morning hours of 19 June 2007, at about 01:30 am, at the premises where he resided inter alia with his sister Gloria and his brother Enock. The deceased resided in an outside room, or garage as it was sometimes referred to by the witnesses, on the premises and his siblings inside the house.
 Gloria testified that she was woken up by a sound that she believed emanated from the outside room where her brother, the deceased, was staying. She, followed by her sister Tsidi, then went to the kitchen door. She opened the door and saw “oupa”, whom she identified in court as the accused. According to Gloria, he picked up a brick or had a brick in his hand, which he attempted to throw at Gloria. She closed the door and the brick hit the door from the outside. She again opened the door and was this time faced with a firearm pointed at her by the accused. She again closed the door and went to wake up her brother Enock. The three of them went outside to the deceased where he was lying in front of the outside room. Another person came out of the outside room and he and the accused ran away. She noticed that the deceased was injured.
 Enock testified that he was woken up by his younger sister Gloria. She said that “they have shot the deceased outside”. He and his sister went to the outside room where he found the deceased lying on the ground just outside the door. He noticed that the deceased was wounded.
 Apart from Gloria’s identification of the accused as one of two males who were present on the premises, the State relied on certain communications allegedly made by the deceased to Gloria and to Enock respectively prior to his death. Application was made to admit such communications in terms of section 3 of the Law of Evidence Amendment Act 45 of 1988. I shall return to my ruling following such application.
 Gloria testified that she, Tsidi and Enock went to the deceased. She lifted him. Saliva or froth came out of his mouth. She asked him whether he saw the person who injured him. He nodded. She asked him whether it was “oupa”. He nodded. She, Tsidi and Enock turned him over.
 Enock testified that they found the deceased lying on the ground. He lifted the deceased up and tried to hold him with his hands and support him on his knees. He asked the deceased who the person was “who did this to him”. The deceased pulled him closer and said “it was oupa”. Enock asked the deceased “oupa and who else”? The deceased did not answer. Foam or froth came from his mouth. Enock took a blanket and covered the deceased.
 It became apparent during the cross-examination of the State witnesses that the accused denies that he was present on the premises as was alleged by Gloria, and he denies any involvement in the commission of the offences.
 I considered the admissibility of the deceased’s alleged communications to Gloria and to Enock under section 3(c) of the Law of Evidence Amendment Act 45 of 1988 and, having regard to the factors listed therein, I was of the opinion that the evidence should not be admitted in the interests of justice. I deal briefly with such factors.
 The proceedings are criminal in nature. There must be proof beyond a reasonable doubt that the accused was one of or the person who committed the crimes in the early morning hours of 19 June 2007.
 The evidence is, in my view, not sufficiently reliable in nature to warrant its reception. Dr. Mwesigwa, who is well qualified and experienced and who impressed us as an expert witness, conducted the post mortem examination on the deceased. He concluded that, apart from a number of superficial wounds, the deceased sustained two gun shot wounds. The bullets entered the back of his body and exited at the front – one through the chest and the other through the abdomen. One bullet pierced the upper lobe of the left lung and the other the abdominal aorta and liver. The deceased suffered ‘massive internal bleeding’ and severe blood loss as a consequence of such injuries. Dr Mwesing expressed the opinion that any statement that the deceased would have made shortly after he had been shot should not be considered reliable since the deceased’s mental faculties would have been affected by the resultant blood and oxygen loss to the brain. He also expressed the view that when such serious trauma is inflicted upon the human body the primitive instinct of self-preservation is for a person not to make any movement and not to speak.
 Gloria’s identification evidence and her evidence relating to the deceased’s communication to her are, in my view, in any event not credible and reliable. There are material contradictions between her evidence and the contents of a police statement (exhibit “D.1”) made by her soon after the incident. In such statement it was inter alia stated that she came across “two unknown black males”, one of whom pointed a firearm at her. No mention was made of the presence of the accused nor of any communication made to her by the deceased. I take into account that police statements are frequently not taken down with accuracy and completeness, that there were language differences between Gloria and the police officer who took down her statement, but the contradictions between her earlier police statement and her evidence in court relating to the identity of the accused and the omission in her police statement of the deceased’s alleged communication to her are material in the circumstances of this case, not adequately explained, and, in my view, negatively affect her credibility and reliability as a witness [see: S v Gqulagha 1990 (1) SACR 92 (A); S v Mafaladiso en Andere 2003 (1) SACR 583 (HHA); and S v Govender and Others 2006 (1) SACR 322 (ECD)].
 The evidence of Gloria and that of Enock on the events that occurred when they arrived at the deceased are irreconcilable. Enock’s evidence did not corroborate the deceased’s alleged communication to Gloria. Under cross-examination Enock confirmed that upon his arrival the deceased “… just managed to mumble the name ‘oupa’ and then passed away”. In answer to my question whether anybody else was present when the deceased made the communication to Enock, he replied that it was only him and the deceased present. According to him, Gloria was going up and down the yard crying. The ability of Gloria and that of Enock to accurately transmit what, if anything, was conveyed to them by the deceased seems to me to be questionable.
 The reliability of Enock’s evidence relating to the deceased’s alleged communication to him is also questionable. A police statement was taken from him on 19 June 2007 in which no mention was made of the communication of which he testified. Sgt Rikhotso attended at the crime scene soon after the event. He testified that he, accompanied by Enock, thereafter went to where the accused resided and Sgt Rikhotso thereupon arrested the accused. The reason why they went to the accused’s residence and why the accused was arrested was, according to Sgt Rikhotso, because Enock informed him that they suspected the accused of having committed the crimes since he was a friend of the deceased and he and the deceased had had an argument a few days before. Enock did not mention the deceased’s alleged communication to Sgt Rikhotso at that time. When Enock testified in chief, he did not mention that he informed Sgt. Rikhotso of such alleged communication before they went to the residence of the accused. Under cross-examination, he was initially uncertain about that, but then purported to recall that he did. Although Enock testified that the deceased did not have any other friend with the name “oupa” he conceded that the name “oupa” was common.
 The purpose for which the State wishes to rely on the communications relates to the fundamental issue between the State and the accused and, if admitted, will play a significant and decisive role on the issue of his guilt. There is, in my view, no compelling justification to admit such evidence [see: S v Ranavhale 1996 (1) SACR 639 (A), at page 649d-e].
 The probative value of the alleged communications by the deceased is outweighed by its prejudicial effect since there exists a real danger of wrong incrimination of the accused in the circumstances of this matter where the evidence of Gloria and of Enock on such issues is irreconcilable with the evidence of the other, where their evidence on such issue is contradicted by their initial police statements, where the police officer who attended at the scene of the crime was not immediately informed by them of such alleged communications made to them by the deceased, and where such communications, if they were made, are not reliable in terms of the only medical expert evidence presented.
 The only evidence implicating the accused at the close of the State’s case after I made the ruling that the deceased’s alleged communications to Gloria and to Enock were inadmissible, was that of Gloria’s identification of the accused as one of the two males present on the premises, the accused aiming a brick at her, and the accused pointing a firearm at her. Gloria’s identification evidence of the accused cannot be accepted as reliable when the necessary caution is applied to such evidence [see: S v Mthetwa 1972 (3) SA 766 (A), at page 768A-C) and to that of a single witness (S v Sauls and Others 1991 (3) SA 172 (A), at pages 179G-180G].
 Gloria testified that a person came out of the garage when she, Tsidi and Enock went outside to the deceased and she noticed the accused and such person running away. Under cross-examination she testified that her sister Tsidi did not see the males. She contradicted her evidence-in-chief by then saying that she woke up her brother Enock after the accused and the other male had run away. For these reasons and those mentioned earlier I formed the view that no reasonable person could possibly accept Gloria’s identification evidence of the accused [S v Moringer 1993 (2) SACR 268 (W) at 272g-h].
 I accordingly took the initiative under section 174 of the Criminal Procedure Act 51 of 1977 [S v Legote en ‘n Ander 2001 (2) SACR 179 (SCA)], and requested both counsel to address me on the issue whether or not the accused should be discharged at the close of the case for the prosecution.
 For the reasons given I am of the view that there is no evidence upon which a reasonable person might convict the accused [S v Khanyapa 1979 (1) SA 824 (A), at page 838F].
 The accused is accordingly discharged and found not guilty on all three counts.
P A MEYER
JUDGE OF THE HIGH COURT
29 October 2008