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[2016] ZASCA 19
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Zwane v S (700/2015) [2016] ZASCA 19 (17 March 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 700/2015
Not
reportable
In
the matter between:
ERNEST
VUSI MAJAZI ZWANE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Zwane
v The State
(700/15)
[2016] ZASCA 19
(17 March 2016)
Coram:
Majiedt and Seriti
JJA, Plasket AJA
Heard:
02 March 2016
Delivered:
17 March 2016
Summary
:
Criminal Law – Appeal against conviction on count of murder and
sentence of life imprisonment – Appeal on conviction
dismissed
– Failure to bring to the attention of the appellant provisions
of s 51 of
Criminal Law Amendment Act 105 of 1997
vitiates the
imposition of minimum sentence of life imprisonment – Sentence
set aside and replaced with 20 years’ imprisonment.
ORDER
On
appeal from
:
KwaZulu-Natal Division of the High Court, Pietermaritzburg (Hurt,
Msimang and Van der Reyden JJ sitting as court of appeal).
1
The appeal against conviction is dismissed.
2
The appeal against sentence succeeds. The sentence of life
imprisonment imposed by the trial court is set aside and replaced
with 20 years’ imprisonment. 3 The sentence is antedated in
terms of
s 282
of the
Criminal Procedure Act 51 of 1977
to 18 March
2002.
JUDGMENT
Seriti
JA (Majiedt JA and Plasket AJA concurring)
[1]
The appellant, Mr Ernest Vusi Majazi Zwane, was arrested on 17
November 2000. He appeared in the KwaZulu-Natal Local Division
of the
High Court, Durban, on 6 March 2001. He faced one count of murder,
one count of attempted murder and one count of robbery
with
aggravating circumstances as defined in
s 1(l)(
b
)
of the
Criminal Procedure Act 51 of 1977
. On 11 March 2002 he was
convicted on the murder count and acquitted on the other two counts.
On 18 March 2002 he was sentenced
to life imprisonment.
[2]
The appellant applied for leave to appeal against conviction and
sentence. On 28 March 2002, he was granted leave to appeal
to the
Full Court only against sentence. On 14 February 2003 his appeal was
dismissed by the court a quo. The appellant, with leave
of this
Court, now appeals against both his conviction and sentence.
[3]
The main issues in this appeal are whether there is sufficient
evidence which identified the appellant as one of the deceased’s
assailants and whether the trial court was correct in invoking the
provisions of
s 51
of the
Criminal Law Amendment Act 105 of 1997
when
imposing sentence on the appellant.
[4]
It is necessary to set out the facts in some detail. It is not
disputed that on 31 July 2000 at about 19h30 and at KwaMashu
Township, Durban, Mr Bafana Emmanuel Zondi (the deceased) was shot 11
times and sustained multiple bullet wounds which caused his
death.
[5]
The state relied on the evidence of six witnesses, namely Mrs Rose
Zandile Msomi (Msomi), Messrs Fanifani Khanda Nene (Nene),
Simphiwe
Katshana Mkhwanazi (Mkhwanazi), Sergeant Andrè Visser (Visser)
and Inspector Vusumuzi Mthethwa (Mthethwa). Msomi
testified that on
the night in question, at about 19h30, the deceased came to her
tuck-shop to buy some items. She served the deceased
who bought chips
and coca-cola cold drink, and whilst preparing to give the deceased
change, she heard gunshots being fired from
outside. She fell on the
ground and hid herself. Before the shooting the deceased was standing
at the window waiting for his change.
Later she saw the deceased
lying on the floor of the veranda of the tuck shop, apparently struck
by the bullets. From the time
that the deceased gave her money to the
time that she heard the first gunshot she did not see anybody come up
to the deceased.
She did not know if Nene was also on the scene at
the time of the shooting. She further testified that Nene arrived at
the scene
later and that she did not know the appellant.
[6]
Nene testified that the deceased was his brother and that they stayed
in the same house. He knew the appellant and they used
to play soccer
together at school. He had known the appellant for about five years.
On the night in question, he was at home, but
not the deceased. He
went to the tuck shop to look for the deceased where he found him.
The vicinity of the tuck shop was well
lit. He asked for a cigarette
from the deceased and thereafter left him in the vicinity of the tuck
shop. Shortly thereafter he
heard sounds of gunshots. He hid himself
in nearby shrubs. He saw two men coming towards the tuck shop and
each of them had a gun.
The deceased ran towards the tuck shop and he
was shot. The two men who had firearms and who were shooting at the
deceased were
the appellant and one Bongani Henry Kwenyama
(Kwenyama).
[7]
Nene further testified that there was another group of people that
was following the two gunmen. There were eight to nine boys
and some
of them also carried firearms and also fired shots at the deceased.
From the time that he saw the deceased’s assailants
for the
first time that evening to the time they left the scene, could have
been five to seven minutes. After the departure of
the deceased’s
assailants he went to where the deceased lay. Thereafter he went home
and made a report to his mother.
[8]
Under cross examination Nene was referred to one of the two
statements he made to the police and in particular to one paragraph
which reads as follows:
‘…
At
about 19h30 I accompanied the deceased Bafana Zondi to buy cigarettes
at Msomi’s tuck shop’. It was pointed out to
him that
that was not consistent with his evidence in court and Nene said he
could not recall why in his statement he mentioned
that he
accompanied the deceased to the tuck shop. He further said that the
appellant and Kwenyama were in front of the group and
they were
firing shots and the group behind these two individuals only started
to fire shots as they came closer to the deceased,
directing those
shots at the deceased who was lying on the ground. He further said
that he recognised both the appellant and Kwenyama
by their facial
features and he did not pay attention to their clothes. He told the
police that his brother was killed by Kwenyama
and the appellant. At
the scene of crime he did not tell anyone that the deceased was
killed by the appellant and Kwenyama. He
also did not tell his mother
that the appellant and Kwenyama had killed his brother as his mother
did not know them. Both the appellant
and Kwenyama were known to him.
He further said that he did not see Mkhwanazi at the scene of the
crime.
[9]
Mkhwanazi testified that the deceased was his friend and on the day
of the incident the deceased found him standing alone at
the veranda
of the tuck shop. This is the veranda where customers stand when they
are being served through the window by Msomi.
The deceased went to
the window where the counter was to purchase some goods. He then saw
a group of boys coming towards the tuck
shop and firing gunshots. In
that group he identified Maxoli, Cewu, Kwenyama and Mtshakandos. He
further said that one of the boys
in that group looked like the
appellant. He knew the appellant as they grew up together and
attended the same school. He did not
see the appellant clearly when
he heard the shots being fired. The person who looked like the
appellant was behind three boys who
were in front of the group at the
time of this incident.
[10]
Under cross examination he said that the deceased found him at the
verandah of the tuck shop and the area was well lit. He
did not see
Nene talking to the deceased nor had he seen Nene at the scene. He
was asked if the appellant was one of the boys who
were shooting and
he said: ‘It’s possible that it was not him but somebody
who looked like him. I’m not sure.’
He further testified
that when the shooting started he ran away. In the statement that he
made to the police on 29 March 2001 he
said that the appellant,
Bongani, Ma-Iron (which is the nickname of Bongani Henry Kwenyama),
Cewu, Bincu, Maxoli, Manyuka and Meshenkhandazi
were part of the
group of boys and were armed with hand guns and rifles.
[11]
Visser testified that on 17 November 2000 he was part of a group of
police officers who were patrolling L Section, KwaMashu.
They were
following up information they received regarding certain suspects
including the appellant. They were five police officers
in one motor
vehicle and Sergeant van der Merwe was driving the motor vehicle.
Whilst driving around L Section approaching the
house where the
appellant was supposed to be, he noticed the suspect they were
looking for. The suspect started running away when
he noticed the
police motor vehicle. He and his colleague, Inspector Reid, jumped
out of the motor vehicle and chased the suspect.
They caught up with
the suspect (who is the appellant herein) and arrested him. At the
time of the arrest of the appellant, his
constitutional rights were
explained to him. Under cross examination he denied that the
appellant was assaulted at the time of
his arrest.
[12]
Mthethwa testified that he first saw the appellant on 18 November
2000 at Durban North Police Station where the appellant was
detained.
He booked the appellant out of the cells to take his finger prints
and to obtain a statement from him. He took the appellant
to his
office. He used a pro forma document to obtain a warning statement
from the appellant. He explained to the appellant his
constitutional
rights and the appellant elected to remain silent. Mthethwa further
said that the appellant then said that he was
‘present when the
deceased was shot to death as we two groups from L Section were
fighting. I then elect to give the detailed
statement before the
magistrate’. After the pro forma document was completed, the
appellant signed it. He further testified
that when he took the
warning statement the appellant did not mention to him that he was
assaulted or threatened by anybody. He
obtained a statement from Nene
on 3 August 2000 and in the said statement Nene mentioned amongst
others that the appellant was
at the scene of the crime. Under cross
examination he denied that the appellant was assaulted either prior
to or during the time
when he obtained his statement or thereafter.
[13]
The appellant testified that on 17 November 2000 he was at home
sitting in the sun. He was called by a certain Bongomusa who
told him
that there was a telephone call for him. He ran home and on his way
he came across a police officer carrying a fire-arm
which he pointed
at him. He furthermore testified that police officers assaulted him
at the time of his arrest. He was detained
at Durban North Police
Station. The following day the investigating officer collected him
from his cell and took him to an office
and took his finger prints.
Thereafter the investigating officer said to him that he wanted to
take his statement. The appellant
further testified that he informed
the investigating officer that he was not going to say anything as he
knew his rights. The investigating
officer together with other police
officers assaulted him, forcing him to sign the statement prepared by
the investigating officer.
He ultimately signed the document that was
given to him to sign. Thereafter he was taken to his cell. He denied
that he told the
investigating officer that he was at the scene of
the crime.
[14]
Under cross examination, he said that the statement he signed was not
written in his presence. He was given four blank pieces
of paper to
sign. He further testified that he told the investigating officer
that there was no need to warn him about his rights
because he knew
his rights. The police officers, during their interrogations were not
forcing him to admit that he killed the deceased
or that he was at
the scene of the crime. The appellant was asked what prevented him
from visiting his family at LA 563 KwaMashu
and he said that his
family was in Umlazi ‘so it was not easy for me to pay a visit
to strange people who were occupying
that particular place.’ He
further said that at the time of the commission of the offence he was
employed as a conductor
on a taxi.
[15]
Mrs Thandekile Mxele, the aunt of the appellant, testified that she
resides at Umlazi as was also the case in 2000. Prior to
staying at
Umlazi she was staying at 563 KwaMashu. She further testified that
the accused after his release from prison did not
visit KwaMashu
until some time in August 2000. She further said that the appellant
was not employed. Under cross examination she
said she left house LA
563 KwaMashu at the end of 1998 and her daughter and a girl with whom
she is related remained in the house.
She did not know where the
appellant was on 31 July 2000.
[16]
In convicting the appellant the trial court correctly made a
favourable credibility finding in respect of the state witnesses
and
rejected the evidence of the appellant. The trial court further said
that ‘Nene’s evidence was not seriously challenged
in any
way and in our view he testified to the best of his ability about his
recollection of the traumatic events which occurred
on the night in
question. Having regard to the fact the appellant was well known to
him, that the lighting in the area was sufficiently
bright for him to
make a correct identification, that he observed the group of
assailants from a close distance and that he had
adequate time to
make a correct identification, we are satisfied that he correctly
identified the accused as one of the assailants’.
I agree with
the views expressed by the trial court. The appellant’s version
was not reliable and the trial court correctly
rejected it.
[17]
The appellant’s counsel submitted that the trial court
misdirected itself by admitting in evidence the warning statement
of
the appellant. Counsel further contended that the appellant was not
informed that he had a right not to incriminate himself
and that he
had a right not to confess or admit anything and the right to be
assisted by legal representative in making a warning
statement.
[18]
The appellant testified that at the time that the investigating
officer was taking his warning statement he advised the investigating
officer that he knew his constitutional rights. This statement by the
appellant indicates that he was well aware of his constitutional
rights which were explained to him by the investigating officer. The
contentions that when the appellant signed the warning statement
he
was not aware of his constitutional rights and that he was forced to
sign the statement have no merits. The trial court correctly
accepted
the evidence of the state witnesses and rejected the appellant’s
version.
[19]
The appellant’s counsel contended that the trial court
misdirected itself by relying on the evidence of Nene who was
a
single witness and whose evidence was not satisfactory in all
material respects.
[20]
Section 208
of the
Criminal Procedure Act provides
that an accused
may be convicted of any offence on the single evidence of any
competent witness. In
Stevens v S
[2004] ZASCA 70
;
[2005] 1
All SA 1
(SCA) para 17 Navsa and Van Heerden JJA said:
‘
As
indicated above, each of the complainants was a single witness in
respect of the alleged indecent assault upon her. . . It is,
however,
a well-established judicial practice that the evidence of a single
witness should be approached with caution, his or her
merits as a
witness being weighed against factors which militate against his or
her credibility. . . . ’
[21]
In
S v Mahlangu
[2011] ZASCA 64
;
2011 (2) SACR 164
(SCA) para
21 Shongwe JA said:
‘…
The
court can base its finding on the evidence of a single witness, as
long as such evidence is substantially satisfactory in every
material
respect, or if there is corroboration. The said corroboration need
not necessarily link the accused to the crime.’
[22]
The area where the deceased was shot was well lit. Nene had a period
of about five to seven minutes to observe the deceased’s
assailants, the appellant was well known to him and the discrepancies
between the statement he made to the police and his testimony
in
court are not material. Nene’s evidence as to the
identification of the appellant as being one of the boys who were at
the scene of the crime is corroborated by the appellant’s
admission mentioned earlier. In the admission the appellant placed
himself at the scene of the crime when the deceased was shot and
killed. In my mind, there is no danger that the appellant could
have
been wrongly implicated in the killing of the deceased. This Court’s
powers to interfere on appeal with the findings
of a trial court are
limited. In the absence of any material misdirection by the trial
court, its findings are presumed to be correct
and will only be
disregarded if the evidence show them to be incorrect. There is no
indication that the findings of the trial court
are incorrect and
therefore the appeal against conviction should fail.
[23]
I now turn to the issue of sentence. In mitigation of sentence, the
appellant’s counsel advised the trial court that
he was 17
years old at the time of commission of the offence, that he was a
first offender and that he had been in custody for
one year and four
months.
Section 51
of the
Criminal Law Amendment Act provides
that
the regional court or a high court shall sentence a person it has
convicted of an offence referred to in
Part I
of Schedule 2 to
imprisonment for life in the absence of substantial and compelling
circumstances. Murder which was planned or
premeditated falls under
Schedule 2. The trial court invoked the provisions of
s 51
and
sentenced the appellant to life imprisonment.
[24]
The appellant’s counsel submitted that the trial court
misdirected itself by sentencing the appellant in terms of the
provisions of
s 51
of the
Criminal Law Amendment Act in
circumstances
where the said provisions were neither contained in the indictment
nor brought to the attention of the appellant
at the commencement of
the trial. The respondent’s counsel conceded that the
indictment made no reference to the minimum
sentence applicable to
the charge and that the trial court did not apprise the appellant of
any applicable minimum sentence.
[25]
In
S v Ndlovu
2003 (1) SACR 331
(SCA) at 337a-c Mpati JA,
after analysing certain authorities, said:
‘
And
I think it is implicit in these observations that where the State
intends to rely upon the sentencing regime created by the
Act a fair
trial will generally demand that its intention pertinently be brought
to the attention of the accused at the outset
of the trial, if not in
the charge-sheet then in some other form, so that the accused is
placed in a position to appreciate properly
in good time the charge
that he faces as well as its possible consequences. . .’
In
Makatu v S
[2013] ZASCA 149
;
2014 (2) SACR 539
(SCA) para 23
Bosielo JA said:
‘
The
trial judge was guilty of a number of misdirections which to my mind
are so gross that they vitiate the sentences imposed. First,
in
sentencing the appellant to imprisonment for life for murder, he
states that the murder was committed under circumstances where
the
offence justified the sentence prescribed under
Part I
of Schedule 2
of the
Criminal Law Amendment Act. A
major problem here is that the
indictment never made mention of this section or the Act. It does not
even give any details to indicate
if there are any aggravating
features which would bring it within the ambit of the minimum
sentencing regime.’
[26]
My view is that the sentence of life imprisonment imposed on the
appellant must be set aside because it was never brought to
his
attention that the state in the event of conviction, would ask the
court to invoke the provisions of
s 51
of the
Criminal Law Amendment
Act. Both
counsel were of the same view. The appellant’s
personal particulars are on record. He was very young when he
committed the
offence under consideration. There are reasonable
prospects that he might be rehabilitated. There are also certain
aggravating
factors. The deceased was brutally murdered for no
apparent reason. No reasons can justify the murder of a person
particularly
in the manner in which the deceased was murdered. The
appellant showed no remorse and maintained throughout the trial that
he was
innocent. In my view a sentence of 20 years’
imprisonment will be appropriate in this case.
[27]
In the circumstances I make the following order:
1
The appeal against conviction is dismissed.
2
The appeal against sentence succeeds. The sentence of life
imprisonment imposed by the trial court is set aside and replaced
with 20 years’ imprisonment.
3
The sentence is antedated in terms of
s 282
of the
Criminal Procedure
Act 51 of 1977
to 18 March 2002.
____________
W
L Seriti
Judge
of Appeal
APPEARANCES:
For
Appellant:
SB Mngadi
Instructed
by:
Legal
Aid South Africa, Pietermaritzburg
Legal
Aid South Africa, Bloemfontein
For
Respondent:
M Mtambo
Instructed
by:
Director
Public Prosecutions, Pietermaritzburg
Director
Public Prosecutions, Bloemfontein