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[2013] ZAGPJHC 3
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Ntuli v S (A347 / 2012) [2013] ZAGPJHC 3 (7 February 2013)
IN THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
(REPUBLIC
OF SOUTH AFRICA
)
CASE
NO.: A347 / 2012
In the matter between:
NTULI
BHEKISGCINO
Appellant
and
THE
STATE
Respondent
J U D G M E N T
THE COURT:
[1] The appellant appeals
to the Full Court, with the leave of the trial court (
per
Maluleke J), against his conviction only. The appellant, having
pleaded not guilty, was convicted on the following charges on 29
August 2006:
1.1
Count 1 – Murder, read with provisions of section 51of
Act 105 of 1997;
1.2 Count 2 –
Attempted Murder read with the provisions of section 51 of Act 105 of
1997;
1.3 Count 3 – The
unlawful possession of a firearm; and
1.4 Count 4 –
Unlawful possession of ammunition.
[2] Having convicted the
Appellant, the trial court imposed the following sentences:
2.1 Count 1 – 18
years imprisonment;
2.2 Count 2 – 7
years imprisonment;
2.3 Counts 3 and 4 (taken
together) – 3 years imprisonment;
[3] On the same day as
conviction, the trial court went on to order that 5 years of the
sentence on count 2 would run concurrently
with the sentence imposed
in respect of Count 1. The sentence imposed on Counts 3 and 4
would run concurrently with the effective
sentence of 20 years on
Counts 1 and 2 taken together, making the total effective sentence
one of 20 years’ imprisonment.
[4] The grounds of appeal
are that:
4.1
The court a quo misdirected itself when evaluating the
evidence relating to the identification of the appellant by the
complainant;
and
4.2
The court a quo erred by dismissing the
alibi defence of the
Appellant.
[5] Briefly, the facts of
this case are that on the evening of the 29
th
January 2005
at approximately 20H00 at George Goch Hostel, the complainant, Simon
Ndwandwe, and his friend, Richard Khoza were
standing and chatting
when they were approached by two men
who started shooting them
when they were about two metres from where they stood.
[6] Khoza sustained
several gun shots and died. Nwandwe managed to escape with
several gun wounds but was eventually rescued
and later admitted to
the Johannesburg Hospital where he was detained while receiving
treatment for three weeks before he was transferred
to South Rand
Hospital.
[7] After his discharge
from hospital, the appellant went to live with his uncle, Musa Ntuli,
in Hilbrow. One day whilst walking
around he saw the Appellant
washing vehicles whereupon he immediately telephoned Inspector
Moletsane. Upon Inspector Moletsane’s
arrival Ndwandwe
took him to the place where he had spotted the Appellant. The
Appellant was subsequently arrested.
[8] It is common cause
that Ndwandwe and the Appellant are from Mahlabathini In Kwa-Zulu
Natal and that the two knew each other
very well albeit that they
were never friends.
[9] The conviction of the
Appellant is premised on the evidence of one witness and this is
Ndwandwe. The cautionary rule that the
evidence of a single witness
must be approached with great circumspection is thus triggered.
[10]
In convicting the Appellant the court a quo was comfortable that the
evidence of Ndwandwe notwithstanding that he was a single
witness was
reliable and satisfactory in material respects.
In the
case of
R v Mokoena
1932 OPD 79
at 80, which has been followed
many times and affirmed in the Appellate Division (see
S v
ffrench-Beytagh
1972 (3) SA 430
(A) at 446A) it was said
that:
The uncorroborated
evidence of a single competent and credible witness...should only be
relied upon where the evidence of the single
witness is clear and
satisfactory in every respect.
See, also:
S
v Sauls and Others
1981 (3) SA 172
(A)
at 180E – G
[11] The trial court
sought support for this conclusion that the evidence as to identity
of this single witness was sufficient by
stating that:
11.1 When the first
investigating police officer visited Ndwandwe on the night of his
admission, 29 January 2005, to Johannesburg
Hospital he identified
one of his assailants as the accused and Mageba Ntuli;
11.2 The complainant
repeated this identification of both Mageba Ntuli and the accused on
two other occasions when he met with the
police.
[12] The record
reveals that Ndwandwe mentioned the name of Mageba Ntuli on the night
of his admission to Johannesburg Hospita
but said nothing about the
Appellant. The Appellant referred to two assailants who live in
Denver Hostel when he met Inspectors
Moletsane and the investigating
officer, Singh. Indeed the first time that the name of the
Appellant came up is after his
arrest on the 12
th
of
September 2005 and this is captured in his sworn statement.
[13] The trial court
appears to have been content to resolve that there was no purpose,
albeit not in so many words, for Ndwandwe
to falsely implicate the
Appellant. Ndwandwe’s evidence-in-chief in at least on
three instances was, that he knew that
his assailants lived at Denver
Hostel yet he failed for approximately eight months to take the
police to Denver Hostel. He
also contradicted himself as to
when he had know that the appellant lived in the hostel.
[14] In
S v Hadebe and
Others
1997 (2) SACR 641 (SCA) at 645E: it was held that
generally in the absence of demonstrable and crucial misdirections
by the
trial court its findings of fact are presumed to be
correct and will only be disregarded if the record shows them
to be clearly
wrong. In light of the obvious incorrectness the
court has no choice but to intervene.
[15] In fact, Ndwandwe
never took the police to Denver Hostel and there is no evidence that
the police ever requested Ndwandwe to
take them there. The
actions of the police and Ndwandwe in this respect are
unsatisfactory.
[16] The appellant
claimed that he left the area of Johannesburg for Mahlabathini with
his uncle on 15 December 2005 for Christmas
holidays. He and
his uncle only returned to Johannesburg during the first week of
February 2005. There are problems with
the appellant’s alibi
defence. We need not deal with these by reason of what follows.
[17]
The evidence
aliunde
in this case corroborates no more
than the fact that the deceased was killed and the complainant
injured. It does nothing to corroborate
the fact that the appellant
was one of perpetrators of the crime.
[18] The evidence of the
single witness, the complainant is not ‘clear and satisfactory
in every respect’. A legitimate
question arises as to whether
the compliant may have reconstructed events as to the perpetrator (by
reason, for example, of the
family feud and his own inner trauma)
even though he may have been
bona fide
and knew the appellant
well.
[19] Accordingly, the
appeal has to succeed. The order of the trial court is set aside and
substituted therefor:
‘
The
Accused is acquitted on all four counts’.
DATED AT JOHANNESBURG
THIS 7
th
DAY OF FEBRUARY 2013
N.P WILLIS
JUDGE OF THE HIGH
COURT
J.P. HORN
JUDGE OF THE HIGH
COURT
B. MASHILE
ACTING JUDGE OF THE
HIGH COURT
Counsel for the
Appellant: Adv
E. Tlake
Counsel for the
Respondent: Adv.
J.M. Tloubatla
Date of hearing: 31
January 2013
Date of judgment: 7
February 2013