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[2014] ZAGPJHC 319
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Mshudulu v S (A137/2013) [2014] ZAGPJHC 319 (4 November 2014)
THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No: A137/2013
DATE:
04 NOVEMBER 2014
In the matter
between:
NANDIPHA
MSHUDULU
..........................................
APPELLANT
And
THE
STATE
.............................................................
RESPONDENT
Coram: ROGERS J &
VAN STADEN AJ
Heard: 31 OCTOBER
2014
Delivered: 4
NOVEMBER 2014
JUDGMENT
Rogers J:
Introduction
[1] The appellant,
who was the first accused in the court below, was charged with two
others on various counts arising from the
alleged kidnapping of
Sisanda Ngcawuzele (‘the complainant’) in December 2006.
The second and third accused were Luther
Kwenana (‘Kwenana’)
and Mzamatolo Tyuluba (‘Tyuluba’). The appellant and her
co-accused were separately
represented at the trial which ran
sporadically on a number of days over the period 4 November 2008 to
24 January 2013. The magistrate
delivered judgment on 20 to February
2013. Sentence was passed on 9 April 2013.
[2] The appeal,
which is with the leave of the magistrate, is against conviction and
sentence.
[3] On the merits
the State called the following witnesses in order: the complainant;
Const Saunders; the complainant’s father,
Mzoli Mngeawuzele;
Pamela Mntushe; Capt Jonker; Tusine Galo; W/O Engelbrecht and Col
Viljoen. There was a trial-within-a-trial
regarding an alleged
confession made by the third accused, Tyuluba. The alleged confession
was ruled inadmissible. The appellant
testified in her own defence.
Neither of her co-accused testified though Tyuluba called a witness,
Julius Merele. I shall refer
to the witnesses by their surnames.
[4] The accused
faced five counts: kidnapping (count 1); robbery with aggravating
circumstances, the stolen items being the complainant’s
Peugeot, keys, two cellphones and her handbag and its contents (count
2); possession of dangerous weapons, namely a knife and an
axe (count
3); fraud alternatively theft relating to the withdrawal of R9 000
from the complainant’s bank accounts (count
4); and extortion
(count 5). In regard to count 5, the state’s case was that the
accused attempted to extort R300 000 from
the complainant’s
father though the attempt was unsuccessful.
[5] The appellant
was convicted of kidnapping (count 1) and attempted extortion (count
5). Her co-accused were convicted on all
counts (the conviction in
respect of count 4 being the alternative of theft). The appellant was
sentenced to five years’
imprisonment on count 1 and two years’
imprisonment on count 5 (an effective period of seven years). The
second and third
accused were sentenced to effective periods of 11
years’ and 12 years’ imprisonment respectively.
[6] The appellant’s
defence at the trial was that she was unwittingly caught up in the
events, that she was unaware of the
plot to kidnap the complainant
and extort money from her father, and that when she became aware that
the complainant was being
unlawfully held she confided in her friend
Mntushe but was arrested before she could go to the police.
[7] Although the
second accused, Kwenana, did not testify, he made certain admissions
pursuant to which a police statement was received
into evidence. In
this statement Kwenana implicated himself in the kidnapping but
claimed to have been acting under duress from
the third accused,
Tyuluba. The magistrate correctly did not regard Kwenana’s
admissions and statement as being admissible
evidence against the
appellant or Tyuluba.
[8] Tyuluba, who
also declined to testify, caused his attorney to put to various State
witnesses that the complainant had been complicit
in her own staged
kidnapping in order to get money from her father.
[9] The magistrate
rejected the appellant’s claim to innocence; rejected Kwenana’s
attempt to excuse his involvement;
and rejected Tyuluba’s
thesis of a staged kidnapping.
The State’s
case
[10] Rather than
setting out the evidence of each of the State witnesses, I shall
summarise, as a narrative account, the version
which the State asked
the trial court to accept on the strength of the oral testimony and
exhibits. I disregard detail which would
only be admissible against
Kwenana.
[11] The complainant
is the daughter of the proprietor of a well-known and successful
butchery and restaurant in Gugulethu. As at
December 2006 she was 20
years old. She resided with her parents. She was employed at a
chemicals company. On weekends she worked
at the butchery/restaurant.
She also co-owned an events company called PST. Her partners in that
business were Galo and one Dumelo
Pudoema (also known as Tumi).
[12] The appellant
and Mntushe were close friends. They both lived in Parklands, the
former in a flat, the latter in a house. The
appellant worked as an
accounts manager at a local radio station. Tyuluba was her boyfriend
and was living with her. They had bought
the Parklands flat shortly
before the incident. The appellant knew Kwenana, who was a friend of
Tyuluba.
[13] The complainant
was acquainted with Tyuluba, having met and chatted to him at a
number of functions. The complainant did not
know the appellant or
Kwenana.
[14] Tyuluba, who
was the mastermind, conspired with the appellant, Kwenana and
possibly others, to kidnap the complainant and extort
money from her
father.
[15] On the morning
of Saturday 9 December 2006 the appellant sent an sms to Mntushe to
ask if she could do her laundry at Mntushe’s
house (she did not
have a washing machine). Mntushe agreed but said she was going to
George for two days (she had to return a vehicle
to her uncle who
lived there). She gave her house keys to the appellant on the
understanding that she would collect them from the
appellant upon her
return. The appellant had access to Mntushe’s house as from the
afternoon of Saturday 9 December 2006.
[16] On Sunday 10
December 2006 the complainant was working at the butchery/restaurant.
In the early afternoon a woman identifying
herself as Cindy from
Eswene Media in Johannesburg, but who was in truth the appellant
(this is common cause), phoned Galo to ask
whether their business had
a female member who could accompany her to a women’s
empowerment function that evening at the
Waterfront. He answered in
the affirmative and gave her the complainant’s number. Galo
phoned the complainant to advise her
of the call.
[17] Cindy left a
lengthy message on the complainant’s voicemail. When the
complainant got home that afternoon she listened
to the message but
it was so long that she terminated the voicemail and contacted Galo
to get Cindy’s number. She phoned
the number Galo gave. The
lady identifying herself as Cindy said that she would like the
appellant to attend a function with her
at the Waterfront starting at
20h00. They arranged to meet outside a restaurant in Parklands. A
some stage Cindy sent an sms to
Galo to say she was at Spier in
Stellenbosch and running a bit late for the meeting with the
complainant. The complainant drove
to the Parklands restaurant in her
Peugeot. She waited for some time. When Cindy did not arrive, she
sent a message to Cindy’s
phone (this was after 20h30). The
latter returned the call and asked her rather to meet her at a house
in Parklands. Cindy gave
the complainant directions as she drove. The
house to which Cindy directed her was Mntushe’s house.
[18] When the
complainant arrived at Mntushe’s house the door was opened by
Kwenana. Tyuluba, who was masterminding the kidnapping,
had arranged
for Kwenana to perform this role, given that the complainant would
have recognised Tyuluba. The complainant asked
Kwenana if Cindy was
there. He replied that she was but was in the shower. The complainant
went inside. Kwenana, who produced a
knife, was soon joined by
another man who emerged from the garage with an axe. This man, who
was wearing a balaclava, was Tyuluba.
They tied her up and
blindfolded her and put duct tape over her mouth. One of them took
her keys and fetched her handbag, which
she had left in the car. They
found her bank cards. Kwenana extracted the PIN codes from her by
getting her to nod or shake her
head as he counted numbers.
[19] The complainant
said there were more voices than just Kwenana’s and Tyuluba’s
but she could not say whether one
of the others was a woman.
[20] Later on the
Sunday night her kidnappers moved her to a new location. They carried
her out to a car (which was not hers) and
drove her to the
appellant’s flat. She was taken to an upstairs room and tied to
a chair. Throughout the ordeal she was blindfolded
and had duct tape
over her mouth (except when being fed).
[21] In the
meanwhile, Mntushe, having left her uncle’s car in George and
hitchhiked back, arrived in Cape Town on the Sunday
evening –
this was at about 21h00. Because she did not have her house keys, she
arranged to be dropped off at the appellant’s
grandmother’s
home in Gugulethu. She phoned the appellant to advise of her expected
time of arrival. On Mntushe’s arrival
in Gugulethu the
appellant was not yet there. She phoned her. The appellant told her
that her boyfriend (Tyuluba) had gone off
in her car. Mntushe said
that the appellant could use her car (a Polo Prior) and that the keys
were on the kitchen table. The appellant
arrived in Gugulethu in the
Polo around 22h00. From there they visited several clubs in the city
centre. At about 02h00 on the
morning of Monday 11 December 2012
Mntushe dropped the appellant off at her Parkland’s flat and
returned to her house.
[22] Having regard
to the timeline of events, it is probable (on Mntushe’s
version) that (i) the complainant was being held
at Mntushe’s
house at the time the appellant collected Mntushe’s car keys
and took her car in order to drive to Gugulethu;
(ii) that the
complainant was being held at the appellant’s flat by the time
the appellant was dropped off there at about
02h00. It may well be
that the kidnappers decided to move the complainant when they did
because Mntushe had arrived back and contacted
the appellant.
[23] In the early
hours of the Monday morning amounts of R2 000 and R1 000 were
withdrawn at ATM machines from the complainant’s
Standard Bank
and Absa accounts. One of these withdrawals is reflected as having
been made at 03h54.
[24] At some stage
during the course of Monday 11 December 2006 Tyuluba came into the
room where the complainant was being held.
It seems that her
blindfold had moved somewhat so that she was able to see some of the
features of the man. This is when she recognised
him as Tyuluba. He
removed the duct tape from her mouth and gave her some bread, cheese
and orange juice. He re-secured her restraints
and also tied a rope
around her neck which he attached to a cupboard bar. He said he would
strangle her if she caused any trouble.
The only person of whose
presence the complainant was aware on the Monday was Tyuluba.
[25] At 14h38 on
Monday 11 December 2006 the complainant’s father received a
telephone call from a man who did not identify
himself but who, it is
common cause, was Tyuluba. The man said that they were holding his
daughter in Johannesburg and demanded
R300 000 for her release. The
same man phoned back after about ten minutes to say that
complainant’s father did not seem
to be taking him seriously.
He threatened to torture the complainant so that her father could
hear that she was being held. He
also warned the complainant’s
father not to go to the police. The complainant’s father
pleaded with them not to hurt
her. The man said he would phone back
with further instructions.
[26] Notwithstanding
the threats, the complainant’s father decided to go to the
police. He went to the SAPS offices in Bellville
South where he spent
a considerable amount of time until his daughter was found. The man
who had phoned him earlier in the afternoon
did not get back to him
with further instructions.
[27] The
complainant’s kidnapping was receiving media coverage. There
were reports on the TV news.
[28] While at work
on Monday 11 December 2012, Mntushe was told by a friend about the
complainant’s kidnapping. Later in the
day the appellant phoned
Mntushe, who told her of the kidnapping. The appellant phoned her
back a while later to say that there
was something she wanted to tell
Mntushe but could not talk about it over the phone. She asked Mntushe
to come and fetch her after
work. Mntushe collected the appellant at
about 18h00. She saw Tyuluba at the appellant’s flat and waved
to him. Mntushe
and the appellant went back to Mntushe’s house.
A friend of Mntushe’s arrived before the appellant had confided
anything
to Mntushe. The three of them had supper and watched TV.
There was a report on the news about the kidnapping. The appellant
phoned
Tyuluba to come and fetch her, which he did at about 20h00.
[29] In the early
hours of Tuesday 12 December 2006 the police found the complainant’s
Peugeot abandoned in Bree Street Cape
Town.
[30] During the
course of the Tuesday Kwenana came into the room where the
complainant was being held and asked if she was hungry.
He fed her
some custard and then left her. She remained bound, blindfolded and
gagged. The complainant was not aware of anyone
else being present in
the flat on that day.
[31] The appellant
had further telephonic contact with Mntushe on the Tuesday. They
arranged to meet during the day but the appellant
did not keep the
appointment. Later the appellant contacted Mntushe to say that she
would spend the night at Mntushe’s place.
Again, however, she
did not arrive. She phoned on the Wednesday to apologise – she
had been running late at a function and
had not wanted to waken
Mntushe.
[32] The appellant
and Mntushe eventually met in Green Point around lunch time on the
Wednesday. The appellant told Mntushe that
she wanted to tell her
something and that she must please not judge her or tell anyone else.
She then confided that Tyuluba was
involved in the complainant’s
kidnapping and that she (the appellant) had nothing to do with it but
was afraid because the
complainant was being held at her flat.
Mntushe was shocked. She went back to work.
[33] During the
course of Wednesday 13 December 2006 the appellant came into the room
where the complainant was being held. (On
the appellant’s
version, this was after she had met with Mntushe at lunchtime. She
testified that Mntushe had urged her that
she go and see whether the
complainant was still at the flat and, if so, how she was doing.) The
complainant did not know the appellant
but could see through the
blindfold that it was a large-bodied woman wearing an orange top. She
recognised the voice as being that
of the Cindy with whom she had
spoken on the Sunday. The appellant tightened the blindfold and other
restraints. She told the complainant
that she should not do anything
and that she knows what ‘that man’ (an apparent reference
to Tyuluba) will do. The
complainant said in cross-examination that
she did not regard this as a threat by the appellant.
[34] After work the
appellant met Mntushe at the latter’s house. The appellant told
Mntushe that Tyuluba had gone to Johannesburg
but had said that two
policemen (presumably meaning two corrupt policemen) would come to
her flat to remove the complainant so
that she need not worry.
However, Tyuluba was now not answering his phone and she did not know
what to do. She told Mntushe that
she did not wish to report the
matter to the police because Tyuluba ‘can do something terrible
to me’. They drove to
Gugulethu in the appellant’s car
and spent time at a place called Gutu.
[35] In the
meanwhile an intensive police investigation had been underway. By the
Wednesday evening the police had information that
Kwenana was
involved and would be found at his aunt’s tavern in Elsie’s
River. They went there (this was after 20h00).
He seems immediately
to have admitted his involvement and to have given them further
information. He led them to Mntushe’s
house. When the police
(accompanied by Kwenana) got to Mntushe’s house there was no
one there. They made a forced entry.
Kwenana told the police that the
complainant had been moved to a flat in Parklands, that he did not
know the address but thought
he could recognise it if they drove
around in the area.
[36] While the
police were still at Mntushe’s house, the appellant and Mntushe
arrived back at Mntushe’s house from
Gugulethu. Kwenana
identified the appellant to the police as one of the accomplices.
(Kwenana did not allege that Mntushe was involved
and the latter
testified that she had never seen Kwenana before that Wednesday
night.) Both Engelbrecht and Jonker testified that
on initial
questioning the appellant denied that the complainant was at her
flat. The senior officer on the scene was Viljoen.
Engelbrecht drove
him and the appellant to the latter’s flat. Jonker was in
another vehicle. The appellant pointed out her
flat, and Engelbrecht
and Jonker (who by now had the flat keys) went inside. As Engelbrecht
and Jonker went into the flat, the
appellant volunteered to Viljoen
that the complainant was in her flat and had been alive when she had
left her that morning. She
did not offer anything more by way of
explanation.
[37] Engelbrecht and
Jonker found the complainant in the upstairs room. A rope had been
tied to the chair, then around her legs,
over her right hand and
around her neck up to the bar in the cupboard and then back down to
the chair. She was blindfolded and
there was duct tape over her
mouth. Because she had been confined to a chair for several days, she
was unable to walk when they
freed her. The chair was wet from urine.
They carried her out and took her to hospital. She was discharged on
Friday 15 December
2006. A J88 report, recording the findings of a
medical examination conducted on 14 December 2006, was handed in by
agreement.
Duct tape residue was observed on her wrists and cheeks.
Her earrings had left an imprint where they had been pressed into her
neck by the duct tape. Her ankles and knees were slightly swollen.
There was minor bruising on the buttocks. There were ligature
marks
on both ankles and bruising on the left wrist. Pain was experienced
on flexion and extension of the knees.
[38] The police also
took Mntushe in a separate vehicle to the appellant’s flat. By
that stage the appellant had been arrested
and was handcuffed.
Mntushe had been informed by the police that the complainant had
initially been held in her house, something
the appellant had not
mentioned. She asked the appellant why she had said nothing about
this. According to Mntushe, the appellant
was crying and apologising
but could not give an answer. (Several days later, at the police
station, Mntushe again confronted the
appellant, on which occasion
the appellant gave a version broadly along the lines of her testimony
in court, including that Tyuluba
had wanted to use Mntushe’s
house for a business meeting and had asked her to contact the
complainant but to pretend to be
a woman called Cindy. The appellant
had not mentioned these aspects of her version to Mntushe when they
talked on the Wednesday.
Mntushe, who herself was arrested, was very
angry that the appellant had dragged her into the matter by abusing
her access to Mntushe’s
house.)
[39] During the
course of the Wednesday further cash withdrawals were made from ATM
machines. One of these withdrawals was at 06h13,
the rest between
19h25 and 20h13. The accounts were frozen later that evening. It does
not appear from the bank statements whether
these withdrawals were
made in Cape Town or Johannesburg.
[40] Tyuluba, who
had disappeared, was eventually tracked down to King William’s
Town in the Eastern Cape where he was arrested
on 21 October 2007,
more than 10 months after the kidnapping.
[41] Mntushe and
Galo were initially suspected of complicity but were not ultimately
charged.
The appellant’s
version
[42] The appellant’s
version was as follows. She and Tyuluba were involved in a
relationship during 2001 to 2003. He was at
times abusive and she
regarded him as unstable. She ended the relationship. They resumed
their relationship in July/August 2006.
They bought the Parklands
flat together. He was not violent or abusive during their second
relationship though did sometimes behave
irresponsibly.
[43] Several weeks
before the incident Tyuluba asked her to get Mntushe’s
permission for him to store computers in her garage,
to which the
latter agreed.
[44] On the morning
of Saturday 9 December 2006 she asked Mntushe whether she could do
her laundry at Mntushe’s house. Her
version on this score was
essentially the same as Mntushe’s. The appellant claimed that
this was a genuine request.
[45] On the Saturday
evening Tyuluba asked her to do him a favour. He wanted to set up a
meeting with an events company (ie PST)
and gave her a business card
containing Galo’s contact details. He had tried to set up a
business meeting with this company
but they were not taking him
seriously. He thought that the appellant, being involved in the
media, might sound more convincing.
She was to phone the number on
the business card and say that she was Cindy from Sound Promotions in
Johannesburg and wanted to
set up a meeting with a female
representative of the company at the Waterfront on the Sunday
evening. The appellant thought (later
she claimed to have been told
by Tyuluba) that there was apparently a woman called Cindy from
Johannesburg who was involved in
promotions and that, if the
appellant claimed to be Cindy, this might get PST’s attention.
[46] On Saturday she
phoned Galo along the lines requested by Tyuluba, stating that she
(Cindy) would like to meet a female representative
of PST at the
Waterfront on the following evening. Galo gave her the appellant’s
number. She phoned this number (this was
after 14h00) and left a
voice message. Later in the afternoon Tyuluba checked with her that
she had set up the meeting.
[47] Thereafter she
got several calls from the complainant but did not want to answer
because she did not know what to say. She
contacted Tyuluba who said
that she should tell the complainant that she was stuck in
Stellenbosch and would meet her outside a
restaurant in Parklands.
Thereafter she and Tyuluba drove to Gugulethu where Tyuluba fetched
Kwenana out of a tavern.
[48] Tyuluba told
the appellant that he now proposed to meet the complainant not at the
Waterfront but at Mntushe’s house
because the people involved
in the computer business wanted a meeting so that he would be at
Mntushe’s house in any event.
She drove Tyuluba and Kwenana to
Mntushe’s house and dropped them off there, collecting her
laundry and giving them the keys.
She then went off to her
grandmother’s house in Gugulethu, having received Mntushe’s
message that she would be arriving
there and wanted to go out
clubbing.
[49] She spoke with
the complainant on the telephone, giving her directions to Mntushe’s
house.
[50] She collected
Mntushe from Gugulethu. Because Tyuluba wanted to borrow her (the
appellant’s) car, it was arranged that
she and Mntushe would go
back to Mntushe’s house and collect the latter’s car.
They did so. Tyuluba had already taken
Mntushe’s car out of the
garage. They swapped cars without going inside. She and Mntushe then
went to several clubs. Mntushe
dropped her off at the appellant’s
Parklands flat in the early hours of the Monday morning. She went
straight to bed on the
ground floor of the apartment. She did not
know that the complainant was at that stage tied up in the upstairs
spare room.
[51] On the Monday
morning she followed her usual routine and went to work. She
testified that she then began to think about Tyuluba’s
unusual
request that she should impersonate a woman called Cindy. She decided
to phone Mntushe and told her that there was something
she need to
discuss but could not talk about it over the phone. They arranged to
meet later in the day.
[52] When she got
home from work on the Monday afternoon, Tyuluba told her that the
woman with whom she had arranged the meeting
was being held upstairs.
She told Tyuluba that she wanted the woman out of her flat. She
testified that she was not interested
in finding out the details.
[53] Mntushe then
fetched her and they went to the latter’s house. A male friend
of Mntushe’s arrived before she could
confide in the latter.
They watched the news, and she saw a report about the kidnapping of
the daughter of the proprietor of a
well-known Gugulethu
butchery/restaurant. She testified that this was when she made the
connection between the woman being held
in her flat and the
kidnapping that was receiving media attention. She immediately phoned
Tyuluba to fetch her, because she wanted
to confront him.
[54] After Tyuluba
collected her, she confronted him and he ‘admitted the whole
thing’. He mentioned that other people,
including several
corrupt policemen, were part of the plot. He told her not to panic
because the complainant was going to be moved
out of her flat. They
drove to Gugulethu and returned to their Parklands flat quite late.
She had expected the complainant to have
been removed by then but
Tyuluba told her that the complainant was in fact still upstairs.
They slept in the flat that night.
[55] She went to
work again on the Tuesday morning. Tyuluba phoned her mid-morning and
told her that the plotters wanted to make
it appear that the
kidnapping had moved to another province. He asked her to find out
when the next available flight was to Johannesburg.
He assured her
that by the time the appellant got home the complainant would have
been removed. She checked on the flights and
reverted to Tyuluba. As
far she is aware, he arranged his own flight and left for
Johannesburg later that afternoon. She surmised
in her testimony that
Tyuluba had followed the strategy because he was starting to panic in
the light of all the media coverage.
[56] She attended a
function that evening. She tried on several occasions to reach
Tyuluba to get confirmation that the complainant
had been moved. When
she could not reach him, she decided not to go back to the Parklands
flat but instead to sleep at her grandmother’s
house in
Gugulethu. She got there just after 01h00 on the Wednesday morning.
She had initially intended to spend the night at Mntushe’s
house but it became so late that she decided instead to go to
Gugulethu.
[57] When she got to
work on the Wednesday morning she phoned Mntushe. They arranged to
meet over lunchtime outside the Traffic
Department in Green Point.
When they met, she pointed to the news billboards about the
kidnapping and told Mntushe that the kidnapped
girl was at her flat
and that she did not know whether Tyuluba had arranged for her to be
moved yet. Mntushe said that she (the
appellant) had to go and check
whether the woman was still there and whether she was all right. They
arranged to meet again after
work.
[58] After lunch the
appellant had to attend a meeting at Montague Gardens. Thereafter she
went back to her flat and went up to
the spare room. The
complainant’s blindfold had slipped so she could see the
appellant. The appellant removed the duct tape
from the complainant’s
mouth. She asked the complainant whether she was alright and whether
she was hungry. The complainant
only wanted fluids, so the appellant
gave her some water and then offered her some custard. She asked the
complainant whether she
would like to go to the toilet but the latter
declined. The appellant left the complainant after re-securing the
blindfold and
placing duct tape again over her mouth. She variously
claimed to have done so because she did not want it to appear, when
the police
eventually came, that someone had ‘tampered with’
the complainant and because, if she had not re-secured the blindfold,
the complainant might have associated her with the kidnapping.
[59] She and Mntushe
met again after work. They decided to drive to Gugulethu to see ‘how
the atmosphere was there’
(this remark was not explained but
presumably was intended to mean that they wanted to find out what
people in Gugulethu was saying
about the kidnapping). At some stage
during the visit to Gugulethu Mntushe wanted to visit a friend. The
appellant waited in the
car because she was so scared. Afterwards
they drove back to Mntushe’s house where they came across a
large police contingent.
[60] It is
unnecessary to set out the appellant’s version of the ensuing
events. Broadly they accord with the State’s
evidence except
that, according to the appellant, she did not deny that the
complainant was at her house. Her version was that
Engelbrecht asked
her where the complainant was but before she could answer Viljoen
asked whether the complainant was still alive.
She responded that the
complainant had been alive the last time she saw her. She confirmed
that she then guided the police to her
flat where the complainant was
found.
The approach on
appeal
[61] The magistrate
rejected the appellant’s exculpatory version as false beyond
reasonable doubt. This court can only interfere
with this finding if
he committed a material misdirection or if we are convinced that the
magistrate’s findings of fact are
wrong (see, eg, R v Dhlumayo
1948 (2) SA 677
(A) at 705-706; S v Hadebe & Others
1997 (2) SACR
641
(SCA) at 645e-f; S v Ndika & Others
2002 (1) SACR 250
(SCA)
para 15; S v Naidoo
[2002] 4 All SA 710
(SCA) para 26). It is not
enough that, after a careful trawling through the whole of the
transcript and exhibits, we think we might
have come to different
factual conclusions. In the absence of material misdirection, we can
only intervene if it is clear that,
despite the advantages which the
magistrate enjoyed of hearing the evidence as it unfolded and of
observing the witnesses, he went
wrong on the facts.
Assessment
[62] Mr Paries for
the appellant was unable to point to any misdirection by the
magistrate. The latter understood the onus resting
on the State in a
criminal matter. He approached the evidence of the complainant with
the caution applicable to a single witness.
I doubt whether the
cautionary rule was applicable; the State’s case against the
appellant did not rest on the single evidence
of the complainant but
on the inferences properly to be drawn from various sources of
evidence. Be that as it may, the magistrate’s
adoption of the
cautionary rule was an approach which favoured the appellant.
[63] The appellant
did not, either in the trial court or before us, embrace Tyuluba’s
contention that the kidnapping was staged
with the complainant’s
complicity. Nevertheless, if Tyuluba’s contention could
reasonably possibly have been true,
the appellant would have been
entitled to an acquittal on the kidnapping charge (though not
necessarily on the extortion charge)
so I shall briefly deal with it.
In my view the magistrate was fully justified in rejecting Tyuluba’s
contention. The magistrate
made a positive credibility finding in
favour of the complainant. He said that the complainant impressed her
as a witness and that
she never got the impression that she was
trying falsely to implicate any of the accused. The complainant
indignantly denied the
proposition that she had conspired with
Tyuluba and others in order to extort money from her father.
[64] Furthermore,
there are undisputed facts which utterly refute the notion of a
staged kidnapping. If the complainant had been
a willing participant
in her own purported kidnapping, there would have been no need for
her to be enticed to a meeting by a bogus
telephone call from the
appellant pretending to be Cindy. It is inconceivable that the
complainant as a willing participant would
have agreed to be tied up,
blindfolded and gagged as she was over a period of three days.
[65] The State thus
proved beyond reasonable doubt that the complainant was kidnapped and
that an attempt was thereafter made to
extort money from her father.
The question is whether the State proved beyond reasonable doubt that
the appellant was complicit
in these crimes.
[66] Given the
appellate deference shown to a trial court’s factual findings
and given the absence of any material misdirection
in this case, we
must ask ourselves whether it is clear from the record that the
magistrate’s rejection of the appellant’s
version as
false beyond reasonable doubt was wrong. In my opinion there is no
basis for concluding that the magistrate went wrong
on the facts.
[67] Since Kwenana
and Tyuluba did not testify, there was no direct evidence of the
appellant’s knowing complicity in the
kidnapping and extortion.
However, the inherent probabilities and certain undisputed facts
cumulatively created a very strong case
against her.
[68] The appellant
was in an intimate relationship with Tyuluba. She did not claim that
when they renewed their relationship in
July/August 2006 he was
violent or abusive towards her. She came nowhere close to showing
that he subjected her to duress in respect
of the relevant events.
[69] The appellant’s
explanation for having phoned the complainant pretending to be Cindy
was preposterous and not worthy
of credence. On her own version, she
was prepared to lie to the complainant during their several
telephonic discussions on Sunday
10 December 2006. She claimed not to
have questioned her boyfriend regarding his very peculiar request.
Apart from the fact that
he was asking her to be dishonest for no
apparently convincing reason, the appellant was pretending to arrange
a meeting between
herself (as Cindy) and the complainant yet on her
version she knew that neither she nor someone called Cindy was going
to be meeting
with the complainant and that it was Tyuluba who
supposedly wanted to meet the complainant. If Tyuluba had previously
tried without
success to set up a meeting with PST, it would hardly
help to entice a representative of that company to a meeting with
Tyuluba
by telling falsehoods which would immediately be apparent
when the representative arrived at the meeting.
[70] Furthermore,
the appellant did not offer any explanation as to why she was
specifically requested to ask to meet with a female
representative of
PST. As a fact, the complainant was the only female partner in the
business and anyone who had made enquiries
about the business would
have been able to ascertain this. Effectively, therefore, her bogus
request to Galo for a meeting with
a female representative of PST was
a request for a meeting with the complainant. If, as the appellant
claimed to have understood,
Tyuluba wanted to meet with PST in
relation to some joint promotions in Cape Town (the details of which
she claimed to know nothing),
there would have been no particular
reason for Tyuluba to insist on a female representative.
[71] On the
appellant’s version, she did not only tell Galo and the
complainant the lie which Tyuluba had first asked her
to tell. She
also supposedly acceded to his request to lie again to the
complainant by telling her that she was stuck in Stellenbosch
and
would meet her at a designated venue in Parklands and later by
telling her that she was rather going to meet her at a residential
address in Parklands, to which she guided the complainant. On her
version, she was guiding the complainant to a house where the
latter
would expect to find her (‘Cindy’). It must have been
obvious that the elaborate deception would immediately
have been
apparent to the complainant on her arrival at Mntushe’s house.
It is beyond belief that the appellant could seriously
have thought
that a business meeting between the complainant and Tyuluba could
succeed against such a background.
[72] Then there is
the fact that the appellant had, fortuitously on her version,
acquired access to Mntushe’s house on the
Saturday and that it
was to that very house that the complainant was first taken on the
Sunday. On the appellant’s own version,
she had not sought
Mntushe’s permission to let Kwenana and Tyuluba use the house
for their own purposes; the only arrangement
was that she could do
her laundry there. On any reckoning, she abused Mntushe’s trust
by giving her co-accused access to
the house.
[73] Kwenana clearly
knew of the appellant’s involvement. When the complainant
arrived at Mntushe’s house and asked
for Cindy, Kwenana was
able to deceive her by saying that Cindy was busy in the shower. It
is plain that Kwenana knew that the
appellant had acted as Cindy in
deceiving the complainant into going to Mntushe’s house.
[74] The next odd
feature of the appellant’s version is that she slept at her
Parklands flat on the Sunday night at a time
when the complainant was
already being held in her spare room upstairs yet she claimed to have
been unaware of her presence. This
requires one to find not only that
she failed to observe or hear anything unusual but that her
boyfriend, Tyuluba, thought that
he could keep a hostage upstairs
without his girlfriend finding out.
[75] Furthermore,
the appellant testified that she had not asked her boyfriend how the
meeting with the complainant had gone. One
would have thought that
she would have been particularly anxious to know, given that the
complainant would have arrived at the
meeting expecting to see Cindy
and would in all likelihood have been outraged at the deception
played on her. Also, she was in
an intimate relationship with Tyuluba
and would have had a natural interest in the success of his business
ventures, if they were
genuine.
[76] The appellant
testified that while she was at work on the Monday morning she began
to think about Tyuluba’s strange request
to her to pretend to
be Cindy. On her version, this was the matter she initially wanted to
discuss face-to-face with Mntushe. It
is most unlikely, however, that
the strangeness of the request would only have begun to play on the
appellant’s mind on the
Monday; it would already have been
obvious on the Saturday. And if this was the matter she initially
wanted to discuss with Mntushe,
it does not strike one as something
which was so confidential that it could not be discussed over the
phone. It is far more likely
that the appellant knew of the
kidnapping and was starting to panic.
[77] The appellant
testified that she only learnt that the complainant was being held in
her flat when she got home from work on
the Monday afternoon. On her
own version, she did not, over the next two days, take the
opportunities which undoubtedly were available
to her to report the
matter to the police, whether personally or anonymously. I also find
it difficult to believe that she could
not have found the chance at
least to confide in Mntushe on the Monday evening. Mntushe had come
to fetch her in her car. She could
have told her close friend as soon
as they were together in the car. It is far-fetched to suppose that
there was no opportunity
for confiding prior to the arrival of
Mntushe’s friend at the house.
[78] Furthermore,
the appellant’s conduct on the Tuesday did not, even on her own
version, exhibit the slightest concern for
the complainant’s
plight. The appellant claims that Tyuluba told her that the
kidnappers wanted to give the appearance that
the kidnapping had
shifted to another province. To this end, the appellant assisted
Tyuluba by ascertaining the next available
flight to Johannesburg.
[79] Having assisted
Tyuluba in this way, the appellant went about her ordinary working
day and attended a function late into the
night. She alleged that she
did not sleep at her flat that evening because she could not contact
Tyuluba to find out whether the
complainant had been moved. That may
be true and she may indeed not have wanted to spend time at the flat
alone while the complainant
was still being held there but that is
far from showing that she was not complicit in the kidnapping.
[80] It was only
around lunch time on the Wednesday that the appellant told Mntushe
what she had supposedly been wanting to confide
in her since Monday
or Tuesday morning. Once again, the fact that she did so does not
point to her innocence. Her own belief, in
retrospect, was that
Tyuluba himself had begun to panic because of the media coverage. It
is entirely plausible that the appellant
was becoming extremely
worried. She may not even have been aware, when the complainant was
initially kidnapped, that the complainant
was the daughter of a
prominent businessman and that the kidnapping would receive wide
publicity.
[81] Even at this
late stage the appellant did not go to the police. She attended a
business meeting and then on her version went
back to the flat. Her
conduct on this occasion, for a supposedly innocent person, was
extraordinary. After feeding the complainant
some fluids, she put
duct tape over her mouth and secured her blindfold. On the
complainant’s evidence, which the magistrate
accepted, the
appellant also tightened the ropes by which the complainant was bound
to the chair and the cupboard bar. The explanation
which the
appellant gave for this conduct is utterly implausible. On her
version, she had had more than a day to contemplate her
dilemma. If
she was innocent, the obvious course would have been to explain the
whole matter to the complainant and to let her
go.
[82] On the
complainant’s evidence, the appellant on this occasion also
warned her (to procure her submission), saying that
she must not
cause any trouble because she knows what ‘this man’
(Tyuluba) will do. The appellant knew, however, that
Tyuluba was in
Johannesburg. Furthermore, Tyuluba had not, even on the appellant’s
version, told her that he intended physically
to harm the
complainant.
[83] We also know
that, having again restrained, gagged and blindfolded the
complainant, the appellant in the evening accompanied
Mntushe to
Gugulethu, only returning to Mntushe’s house quite late that
night – all the while knowing that the complainant
was tied up,
gagged and blindfolded in her flat. She did not testify that, even
then, she had a firm plan to go to the police.
She evidently had not
asked Mntushe to go with her to her apartment to see how the
complainant was doing and to release her. Instead
they drove to
Mntushe’s house.
[84] On being
confronted by the police, the appellant even on her own version did
not volunteer that the complainant was at her
flat, saying only that
when she had last seen the complainant she was alive. On the evidence
of two policemen, Engelbrecht and
Jonker, she positively denied that
the complainant was at her flat. This is consistent with Viljoen’s
testimony who said
that it was only when they arrived at the
appellant’s flat, and Engelbrecht and Jonker had gone to search
the flat, that
the appellant volunteered that the complainant was in
her flat and had been alive when she last saw her. Viljoen’s
evidence
read particularly well and he was a manifestly fair and
honest witness.
[85] The
circumstances, in their totality, constituted a very powerful case
against the appellant. In assessing credibility, the
inherent
probabilities are vitally important. The inherent probabilities were
very strongly against the appellant. I find it difficult
to imagine
that any witness, however convincing, could have explained all these
matters away. The transcript of her evidence certainly
does not come
across as particularly convincing. But importantly, the magistrate
had the opportunity of seeing and hearing her,
an opportunity which
we have not enjoyed. The magistrate clearly did not believe the
appellant and thought her version false beyond
reasonable doubt.
There were ample grounds for him to reach that conclusion. I
certainly cannot say that it is obvious that the
magistrate went
wrong on the facts. This was a case where the magistrate was entitled
to find not merely that the appellant’s
version was improbable
but that it was so improbable that it could not reasonably possibly
be true (S v Shackwell
2001 (4) SA 1
(SCA) para 30).
[86] The appellant’s
conduct in eventually confiding in Mntushe but claiming not to be
involved is as consistent with her
guilt as with her innocence and is
thus not a point in her favour. When things went wrong in the
kidnapping, it is entirely likely
that the appellant would have tried
to think up an exculpatory excuse. She was also placed in a
predicament when Tyuluba went off
to Johannesburg, leaving the
complainant in her flat.
[87] I am perfectly
willing to accept that Tyuluba, as the mastermind, told her that he
would arrange for the complainant to be
removed from the flat (though
the appellant did not explain when or how the persons who were to
remove the complainant would get
access to her flat, given that
Tyuluba himself was going to Johannesburg). This does not mean that
the appellant was not complicit
in the kidnapping, only that she did
not want to be stuck with the complainant when Tyuluba went off to
Johannesburg.
[88] If by Wednesday
the appellant was fearful or panicky (as I think likely), that was
because the kidnapping plan was unravelling
and she would potentially
be left in the firing line. The fact that the appellant came across
to Mntushe as fearful and uncertain
is thus entirely plausible.
Mntushe, who it must be remembered was at the time a very close
friend of the appellant despite the
fact that she subsequently
testified for the State, would not have known the true reason for the
appellant’s condition.
[89] I must say
that, even on the appellant’s version, I think she was guilty
of kidnapping at least from the time she visited
the complainant on
the Wednesday afternoon and re-secured the restraints and tightened
the blindfold. However, if that were the
limited extent of her
involvement in the kidnapping, it would have materially influenced
the sentence imposed. And of course, a
conviction for kidnapping on
that limited basis would not have justified the inference that the
appellant also participated in
the extortion. But I think the
magistrate was right to reject the appellant’s version as false
beyond reasonable doubt.
[90] Once the
magistrate found, as he was entitled to do, that the appellant was
complicit in the kidnapping and that her exculpatory
version was
false beyond reasonable doubt, the further finding that she
participated in the kidnapping with a view to extortion
was also
justified. She offered no other explanation for the kidnapping, and
we know as a fact that an attempt to extort money
from the
complainant’s father was made.
Sentence
[91] There is
nothing in the appeal against sentence. The crimes were serious and
the appellant’s participation therein material.
The appropriate
sentence was in the discretion of the magistrate. It has not been
shown that he misdirected himself and the sentence
does not induce a
sense of shock.
Conclusion
[92] It follows that
the appeal must be dismissed.
Van Staden AJ:
[93] I concur.
ROGERS J
VAN STADEN AJ
APPEARANCES
For Appellant:
Mr A Paries
Instructed
by:Homes Attorneys
4th Floor, 3
Barrack Street
Cape Town
For Respondent:
L Mcani
Office of the DPP
Cape Town