Dalindyebo v S (090/2015) [2015] ZASCA 144; [2015] 4 All SA 689 (SCA); 2016 (1) SACR 329 (SCA) (1 October 2015)

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[2015] ZASCA 144
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Dalindyebo v S (090/2015) [2015] ZASCA 144; [2015] 4 All SA 689 (SCA); 2016 (1) SACR 329 (SCA) (1 October 2015)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE
NO: 090/2015
Reportable
In
the matter between:
BUYELEKHAYA
DALINDYEBO

APPELLANT
and
THE
STATE

RESPONDENT
Neutral
Citation:
Dalindyebo
v S
(090/2015)
[2015] ZASCA 144
(1
October 2015).
Coram:
Navsa, Ponnan, Saldulker and Mathopo
JJA and Baartman AJA
Heard:
21 August 2015
Delivered:
1 October 2015
Summary:
Fair trial rights – complaint
concerning delay in prosecution – held that largely due to
conduct of appellant himself
– complaint concerning inadequacy
of legal representation rejected – accusation that trial judge
acted irregularly
by descending into the arena calling into question
his impartiality unfounded – King, in dealing with his
subjects, committing
criminal acts – actions deplored –
setting fire to the houses of his subjects and severely assaulting
young men alleged
to have committed criminal acts – had it not
been for medical intervention they would probably have died –
defence
that appellant could not be convicted of arson because the
land on which the subjects lived belonged to him and the structures
he had set fire to had acceded to the land rejected – a person
could be guilty of arson if he sets fire to his own immovable

property with the intent to injure another – appellant guilty
of arson, kidnapping, assault with intent to do grievous bodily
harm
and defeating the course of justice – appeal in respect of
severity of sentence dismissed – appellant held to
be fortunate
in not having had a lengthier sentence of imprisonment imposed.
ORDER
On
appeal from:
The Eastern Cape High
Court, Mthatha (Alkema J sitting as court of first instance).
The
following order is made:
(a).
Save in relation to the conviction of culpable homicide and the
consequent sentence, the appeal is dismissed.
(b).
The conviction of culpable homicide and the sentence of ten years’
imprisonment imposed in respect of that conviction
are set aside.
(c).
The order by the court below in relation to sentence is substituted
as follows:
‘
1.
In respect of the arson charges, namely Counts 1, 14 and 15, the
accused is sentenced to FIVE (5) YEARS IMPRISONMENT in respect
of
each count.
2.
In respect of the kidnapping charges, namely counts 5, 6, 7, 8, 9, 10
and 11, which is taken as one count, the accused is sentenced
to ONE
(1) YEAR IMPRISONMENT.
3.
In respect of the charge relating to defeating the ends of justice by
unduly influencing Mr Stokwana Sonteya to withdraw the
arson charges,
the accused is sentenced to ONE (1) YEAR IMPRISONMENT.
4.
All the sentences referred to in paragraphs 1, 2 and 3 above shall
run concurrently with each other, resulting in an effective
sentence
of FIVE (5) YEARS IMPRISONMENT in respect of all the aforesaid
charges.
5.
In respect of the assault charges, namely Counts 24, 26 and 28 the
accused is sentenced to FIVE (5) YEARS IMPRISONMENT in respect
of
each count.
6.
The sentences of five (5) years in respect of the aforesaid assault
charges shall run concurrently with each other.
7.
In respect of the charge relating to defeating the ends of justice by
concealing the death of Saziso Wofa, the accused is sentenced
to TWO
(2) YEARS IMPRISONMENT.
8.
The accused is thus sentenced to an effective term of TWELVE (12)
YEARS IMPRISONMENT.’
JUDGMENT
Navsa
JA and Baartman AJA (Ponnan, Saldulker and Mathopo JJA concurring):
Introduction
[1]
Imagine a tyrannical and despotic king who
set fire to the houses, crops and livestock of subsistence farmers
living within his
jurisdiction, in full view of their families,
because they resisted his attempts to have them evicted, or otherwise
did not immediately
comply with his orders. Imagine the king
physically assaulting three young men so severely that even his
henchmen could not bear
to watch. Imagine the same king kidnapping
the wife and children of a subject he considered to be a dissident in
order to bend
the latter to his will. Consider that the king in
question delivered the body of a subject, killed by his supporters,
to a bereaved
father, ordering the latter not to even consider
reporting the truth concerning the circumstances of his death to any
authority
and then fining the father of the deceased ten head of
cattle because, so the King alleged, the son had brought shame to the
Kingdom.
If the State is to be believed, this is not a description of
what occurred during medieval times but it is how the appellant, King

Buyelekhaya Dalindyebo, treated his subjects at a time after South
Africa became a Constitutional State subject to the rule of
law. The
appellant, on the other hand, would have this court accept that he
was a caring and compassionate king who acted in the
best interests
of his subjects, in accordance with customary law and that his
behaviour was beyond reproach. This appeal will determine
which of
the competing contentions prevail.
The
convictions and sentences in the court below
[2]
In the court below and before us the State’s case against the
appellant was as follows. The appellant, the Paramount Chief
of the
AbaThembu
[1]
in the Eastern
Cape, who is also referred to as the King of that tribe, set fire to
dwellings that housed three complainants, who
were his ‘subjects’
and tenants, to secure their eviction when he considered that they
had breached tribal rules. In
all three instances the families of the
people concerned looked on as their homes were set on fire. In that
regard the appellant
was charged with three counts of arson. The King
was also alleged to have publicly assaulted three young men so
brutally that some
of the people present could not bear to continue
to observe and had it not been for later medical intervention they
might very
well have died. The assaults were perpetrated, so the
State contended, as punishment, without a trial, for criminal acts
allegedly
committed by the young men in question, being, inter alia,
housebreaking and rape. It is common cause that one of the young men,

Mr Lunga Pama, subsequently became mentally impaired. It is uncertain
whether the impairment was caused by the assaults. In respect
of the
alleged assaults the appellant was charged with 3 counts of attempted
murder and was convicted of the lesser offence of
assault with intent
to do grievous bodily harm. A fourth young man, who was alleged to
have been party to the alleged crimes referred
to above, was killed
by members of the community who were supporters of and loyal to the
appellant. The State contended that the
assaults that led to the
death of the fourth young man were perpetrated pursuant to the
instructions of the King that he should
be assaulted. In respect of
this occurrence the appellant was charged with murder. The court
below, however, found him guilty of
culpable homicide. The appellant,
so the State alleged, threatened and intimidated the father of the
young man who was killed and
in so doing sought to prevent criminal
charges being laid in relation to the killing. The State also alleged
that the appellant
was guilty of acting with intent to defeat the
course of justice by unduly influencing one of the complainants in
the arson charge
to withdraw the charge. These charges were brought
under s 40
(a)
of the Transkei Penal Code Act 9 of 1983 (Transkei) (TPA) which reads
as follows:
‘
40.
Any person who –
(a)
. . .  does anything to obstruct,
prevent, pervert or defeat the course of justice; or
. . .
shall
be guilty of an offence. . . .’
On
these two counts the appellant was convicted as charged. The
appellant also faced seven counts of kidnapping. The State’s

case was that the appellant had deprived the wife and six children of
one of his subjects of their liberty by forcing them to accompany
him
to the equivalent of a palace, ‘The Great Place’, in
order to induce the husband and father to present himself
there. The
court below convicted the appellant of one count of kidnapping,
notwithstanding that it accepted that he had deprived
all seven
individuals of their liberty in the manner described above.
[3]
Thus, save for the charge of murder (on which the appellant was
convicted of culpable homicide) and the seven counts of kidnapping,

which were treated as one, the appellant was otherwise convicted of
the following offences and sentenced as set out hereafter:
‘
1.
In respect of the arson charges, namely Counts 1, 14 and 15, the
accused is sentenced to FIVE (5) YEARS IMPRISONMENT in respect
of
each count.
2.
In respect of the kidnapping charge, namely counts 5, 6, 7, 8, 9, 10
and 11, which is taken as one count, the accused is sentenced
to ONE
(1) YEAR IMPRISONMENT.
3.
In respect of the charge relating to defeating the ends of justice by
unduly influencing Mr Stokwana Sonteya to withdraw the
arson charges,
the accused is sentenced to ONE (1) YEAR IMPRISONMENT.
4.
All the sentences referred to in paragraphs 1, 2 and 3 above shall
run concurrently with each other, resulting in an effective
sentence
of FIVE (5) YEARS IMPRISONMENT in respect of all the aforesaid
charges.
5.
In respect of the assault charges, namely Counts 24, 26 and 28 the
accused is sentenced to FIVE (5) YEARS IMPRISONMENT in respect
of
each count.
6.
The sentences of five (5) years in respect of the aforesaid assault
charges shall run concurrently with each other.
7.
In respect of the culpable homicide charge, namely Count 31, the
accused is sentenced to TEN (10) YEARS IMPRISONMENT.
8.
In respect of the charge relating to defeating the ends of justice by
concealing the death of Saziso Wofa, the accused is sentenced
to TWO
(2) YEARS IMPRISONMENT.
9.
The sentence of two years imprisonment referred to in paragraph 8,
shall run concurrently with the sentence of 10 years under
the
culpable homicide charge mentioned in paragraph 7.
10.
It is ordered that five (5) of the ten (10) years imprisonment in
respect of the culpable homicide charge mentioned in paragraph
7,
shall run concurrently with the five (5) years imprisonment in
respect of the assault charges.
11.
The result of what I have said above is effectively the accused is
sentenced to FIFTEEN (15) YEARS IMPRISONMENT.’
Reservation
of questions of law
[4]
The appellant appeals against the aforesaid convictions and related
sentences with the leave of the court below. In addition,
in terms of
s 319 of the Criminal Procedure Act 51 of 1977 (the CPA) and at the
instance of the State, certain questions of law
were reserved by the
court below. That, however, was not persisted with by the State on
appeal.
The
issues
[5]
Before us, at the outset, the appellant challenged his convictions on
the basis that his trial was unfair. He contended that
because his
trial had commenced approximately 8 years after the events on which
his convictions were based, he was hampered in
his ability to adduce
and challenge evidence and asserted that this was in violation of his
constitutional right to a speedy trial
in terms of s 35(3) of the
Constitution. The appellant also seemingly challenged the fairness of
his trial on the basis that the
many legal representatives that
appeared on his behalf during the almost 5 years that it endured,
failed to represent him competently
and effectively. In this regard,
he contended that they failed to challenge witnesses when they were
supposed to. The appellant
also accused Alkema J in the court below
of unjustifiably descending into the arena with persistent
questioning that amounted to
repeated irregularities vitiating the
trial. The prosecutor was also accused of cross-examining on bases
that were factually incorrect
and which, it was submitted on behalf
of the appellant, ought to have been prevented by the court below.
[6]
Furthermore, the appellant challenged the merits of his conviction.
In relation to his convictions on the charges of arson,
his principal
defence was that the two houses he had admitted to setting on fire
were his property and he could therefore not rightly
have been
convicted of arson. It is necessary to note that in respect of those
two charges there was no dispute that the appellant
had set fire to
the houses concerned either directly, or by way of instructions to
others. We pause to state that the charges of
arson, because of the
geographical location were brought in terms of the TPA. Before us the
propriety of that course being followed
was unchallenged.
[2]
In respect of the remaining charge of arson the appellant denied any
involvement at all. In convicting him of the three charges
of arson,
Alkema J invoked the right to housing as set out in s 26 of the
Constitution. It was contended on behalf of the appellant
that the
learned judge erred in doing so and consequently erred in convicting
the appellant of arson.
[7]
In challenging his conviction on the three counts of assault, the
appellant contended that the court below had failed to take
into
account that in inflicting what he considered to be ‘light
lashes’, he meant not to act in concert with his supporters
who
had already severely beaten the three young men who were subjected to
the assaults, but had meant to avoid them being assaulted
any further
by his supporters. In respect of his convictions on the counts of
defeating the ends of justice, he contended that
there had been
insufficient evidence to justify the conclusions of the court below.
Similarly, it was submitted that the evidence
in relation to the
kidnapping charges was wanting. In respect of his conviction of
culpable homicide, the appellant contended that
there was no evidence
linking him to the actions of his subjects and/or supporters, who, it
is common cause, had severely beaten
the young man who had died as a
result thereof. In respect of the sentences referred to above, the
appellant’s case was that
they were shockingly
disproportionate.
Fair
trial rights – delay in prosecution
[8]
First we turn to deal with the appellant’s contention that,
because of the lapse of time between the events and the commencement

of proceedings in the court below, his trial was unfair. It is true
that our Constitution dictates that criminal trials should
begin and
conclude without unreasonable delay. Section 35(3)
(d)
provides:
‘
3.
Every accused person has a right to a fair trial, which includes the
right –
.
. .
(d)
to have their trial begin and conclude without
unreasonable delay.’
In
Sanderson v Attorney-General, Eastern Cape
[1997] ZACC 18
;
1998 (2) SA 38
(CC), para 20, the Constitutional Court, in examining
a similar provision in the interim constitution, stated that ‘.
. .
a useful starting point is to establish why the right to a trial
within a reasonable time was included as one of the specifically

enumerated elements of a fair trial.’ In para 23 the
Constitutional Court considered that the enduring impact of a
prosecution
process may well jeopardize or impair the benefits of the
presumption of innocence. Doubt will have been sown as to an
accused’s
integrity in the eyes of his family, friends and
colleagues. In addition to the social prejudice an accused is also
subject to
invasions of liberty that range from incarceration to
onerous bail conditions to repeated attendance at court. The right to
a trial
within a reasonable time, so the Constitutional Court
explained (para 24), ‘. . . also seeks to render the criminal
justice
system more coherent and fair by mitigating the tension
between the presumption of innocence and the publicity of trial.’

With reference to the American case of
Barker v Wingo, Warden
[1972] USSC 144
;
407
US 514
(1972) at 532. Kriegler J sets out in para 25 of
Sanderson
how a court should determine whether a particular lapse of time
is reasonable. He says the following:
‘
[T]here
is a ‘balancing test’ in which the conduct of both the
prosecution and the accused are weighed and the following

considerations examined: the length of the delay; the reason the
Government assigns to justify the delay; the accused’s
assertion of his right to a speedy trial; and prejudice to the
accused.’
[9]
In drawing comparisons with foreign jurisdictions, the Constitutional
Court in
Sanderson
(para 26) took note of the fact that the vast majority of South
African accused are unrepresented and have no conception of a right

to a speedy trial. It was also unrealistic not to recognise that the
administration of our criminal justice system, including law

enforcement and correctional agencies, were under severe stress.
[10]
We now examine the facts in relation to the delay in the appellant’s
prosecution
and
we deal with the question of trial prejudice. We start by
scrutinising in some detail, the events preceding the commencement of

the trial. On 27 June 1995, Mr Stokwana Sonteya (Stokwana), laid a
charge of arson against the appellant at the Bityi Police station.
He
alleged that the appellant had set fire to his house. On 4 July 1995,
the appellant was arrested in respect of that charge and
made a
warning statement. On 28 July 1995, Mbuzeni Makhawenkwana (Mbuzeni)
also laid a charge of arson against the appellant at
the Bityi Police
station (the second arson charge). He alleged that the appellant had
set fire to his home on 20 July 1995, after
removing his belongings
and leaving them scattered in the veld. This, according to Mbuzeni,
was a form of punishment because he
had murdered someone on the
King’s land and according to the King had thereby brought
disgrace upon the kingdom. On 30 July
1995 the appellant was arrested
on that charge and made a warning statement in relation thereto. On 1
August 1995 the appellant
failed to attend court in relation to his
prosecution on the charge laid by Mbuzeni and the court consequently,
on 14 September
1995, issued a warrant for his arrest. The evidence
adduced on behalf of the State proved that the appellant had employed
various
means to ensure that the charges brought by Stokwana were
withdrawn. Stokwana’s evidence was that he had been approached
by Chief Zwelidumile, who was also subject to the King’s
authority and part of the hierarchical chain of command, and
pressured
to withdraw the charges. The chief asked Stokwana how he
could even contemplate charging the King with criminal conduct.
Wayiya,
was also approached by the Chief who sought to prevail on him
to get his brother, Stokwana, to withdraw the charges. As is becoming

apparent from the evidence of the principal witnesses on behalf of
the State, far from seeking his day in court, the appellant
was doing
his utmost to avoid it and in this regard was relying on a royal
prerogative. On 10 August 1995, succumbing to the pressure,
Stokwana
and Wayiya withdrew the charges. It should be borne in mind that, at
this stage, the King had set fire to Stokwana’s
house. Stokwana
and his brother testified that they succumbed to the pressure because
they wanted to avoid further ills being visited
upon them by the
King.
[11]
In relation to the charge of the murder of Mr Saziso Wofa (the
deceased) in respect of which, as described above, the appellant
was
convicted of culpable homicide, the following timeline is relevant.
On 27 January 1996 the deceased, who was then 18-years
old, died
after he had been severely and brutally assaulted by members of the
community who were also supporters of the King. According
to
witnesses for the State, the appellant was notified about his death
and arranged for the body to be delivered to the deceased’s

father. The appellant accompanied the body and others to the
deceased’s father’s homestead. There he instructed the

father to make arrangements for a burial and ordered him to tell
staff at the mortuary that his son had died of natural causes.

According to the deceased’s father, Mr Koto Wofa (Wofa), he was
also warned not to report the matter to the police. Wofa
testified
that he complied with the appellant’s order to present himself
at the ‘Great Place’ that same afternoon.
When he did,
the appellant ordered him to pay a fine of ten head of cattle because
of the disgrace his son had brought upon the
King’s land by
associating himself with the criminal acts of the other three young
men who had been assaulted as described
above. If Wofa and the State
witnesses are to be believed in relation to the events described
above, then what is clear is a pattern
of intimidation by the
appellant to avoid having to deal with the legal consequences of his
actions. Inspector Nelson Tobias Hakula
(Hakula), branch commander at
Bityi police station, had heard rumours about the deceased’s
death and the assaults perpetrated
on people who resided on the farm
over which the appellant had jurisdiction and decided to investigate
the matter. He paid Wofa
a visit and subsequently, on 8 February
1996, obtained an exhumation order. The deceased’s body was
exhumed and an autopsy
was performed. On 10 February 1996 Hakula
caused a warrant for the appellant’s arrest to be issued in
relation to the murder
of the deceased.
[12]
On 1 May 1997, a date scheduled for the trial of the appellant in
respect of the arson charge related to Mbuzeni’s house,
the
appellant failed to appear in court. Instead of following the normal
course of having a warrant issued for his arrest, the
prosecution
elected to withdraw charges. A number of witnesses, including members
of the South African Police Services (SAPS),
testified that the
appellant was an influential figure and that senior police officials
had intervened to ensure that he would
not be prosecuted. At this
stage it is necessary to record that, at the relevant time, not only
was the appellant King of the AbaThembu,
but he was also a member of
the Provincial Legislature. Mbuzeni’s evidence on why he did
not pursue the arson charge is as
follows:
‘
My
Lord I abandoned that case as far as I know that was the end of the
case, because I not was getting any assistance from the police.’
It
is common cause that, subsequent to the events described above, the
appellant’s subjects were becoming increasingly unhappy
about
his reign and the manner in which he treated them and ultimately led
protests against him.
[13]
The charges referred to above were only reinstated as a result of
pressures being brought to bear by way of a complaint lodged
with the
Human Rights Commission by Mbuzeni from prison, where he was
incarcerated because of his conviction in relation to the
murder
referred to earlier in this judgment and a complaint, apparently by
way of a letter sent to the National Police Commissioner
by one of
the appellant’s chiefs, Chief Jonginyaniso Mtitara. The
existence of the letter was not seriously challenged in

cross-examination. In January 2003, by directive of the National
Commissioner, detective inspector Alfred Madolo, stationed at
Tembisa
in the North Rand started to re-investigate the charges and the
events referred to above. The charges that had been brought
earlier
must have been reinstated prior to the appellant’s appearance
in the court below on 8 November 2004 with further
related charges
added. We have no hesitation in accepting the evidence of the
witnesses on behalf of the State in relation to the
reasons for the
delay in the appellant’s prosecution. The complainants were
justifiably terrified of the appellant. Even
when they were desperate
enough to report matters to the police they were met with the
negative force of his influence and were
pressurised into withdrawing
whatever action they had taken to initiate a prosecution. We pause to
record that Wayiya did not lay
any charges nor did the father of the
deceased. They were too terrified to do so.
[14]
In the present case it is so that years passed between the commission
of the alleged offences and the commencement of the appellant’s

trial. Much, if not all of that delay was caused by the appellant
being obstructive and employing dubious means to thwart the
administration of justice, including the intimidation of
complainants. Pressure had to be brought to bear by the community for
the prosecution to be reinstated.
[15]
Having done all he could to avoid facing prosecution, the appellant
attempted to turn his vice into a virtue. Very early on
in his trial
his counsel noted that he was now faced with the difficulty of fading
memory and the possible loss of documentation.
He also asserted that
at least two crucial witnesses had died in the interim. He did not
indicate who those witnesses were. Much
later, whilst the appellant
was testifying and under re-examination, he increased the number of
witnesses who could have testified
in support of his case to six
potential witnesses, who, he informed the court, had all passed away.
The first person he named he
described as being his ‘eye on the
farm’. It is necessary, at this stage, to record that the farm,
Tyalara, is where
‘The Great Place’ is located and is
registered in the appellant’s name. Tyalara is also the place
where all the
events on which the charges were based took place.
The appellant named the other persons who had died
but did not say on what aspects of the State’s case or his
defence he required
their testimony.
[16]
The only reference by the appellant to documentation that might have
been lost, potentially causing him prejudice in his defence,
was to
occurrence book entries. Once again we were not told in what respect
they were relevant and how they might have assisted
the appellant in
his defence.
[17]
It is to be noted that a number of witnesses who testified on behalf
of the State, to whom reference will be made later in
this judgment,
were witnesses tendered in terms of s 204 of the CPA,
[3]
many of whom had been loyal to the appellant. It also appears that a
number of witnesses to the events that formed the subject
of the
charges faced by the appellant continued to reside on the farm and
were available to both the prosecution and the appellant
at the time
of his trial. The appellant testified that he had made attempts to
talk to potential witnesses. Some had said that
they did not recall
the events of that time, and others that they did not want to become
involved. Importantly, the appellant admittedly
himself played a
central role in the events in relation to which he had been charged.
The events were dramatic and were such that
they would leave a
permanent impression. In any event the record extends to over 3000
pages and scrutiny of it reveals that a vigorous
defence was mounted
and that the State witnesses were subjected to lengthy
cross-examination. Loss of memory did not appear to
impact on the
appellant’s defence. We could detect no prejudice.
[18]
Significantly, the appellant’s dilatory and obstructive
behaviour continued after the commencement of his trial. He had

successive and multiple legal representatives and, at one stage,
elected to represent himself. It is clear from the record that
he
contributed in large part to the trial lasting almost five years.
Exhibit ‘DD’ contained in the record lists trial

postponements at the instance of the accused. They comprise a total
of at least 34 postponements.
[19]
To our minds, it is clear that the appellant had no interest in his
trial being finalised. On the contrary, from the onset
he attempted
to avoid being prosecuted and thereafter focused on obstructing the
finalisation of his trial. Insofar as his liberty
is concerned,
except for the briefest period of incarceration soon after the
occurrence of the events in question, he has had the
benefit of being
freed on bail.
[20]
In respect of alleged trial prejudice, it is to be noted that the
witnesses on behalf of the State were cross-examined at length.
Other
than the ipse dixit of his legal representative referred to above, we
could, despite our best efforts, not detect any hindrance
or
prejudice to the appellant in the conduct of his defence.
Furthermore, even though threatening to call witnesses who, on his

own and the State’s version of events, were crucial to his
defence, for example his sister, he did not do so. In our view,
trial
delay leading to an unfair trial, as the appellant’s defence is
entirely without merit.
[21]
To sum up, the delay in the appellant’s prosecution was caused
largely by his own bad behaviour, including the fear he
induced in
his subjects and the influence he wielded in his area of
jurisdiction. Insofar as prejudice is concerned, we could detect

none.
The
complaint that appellant was not competently represented during the
trial
[22]
We now turn to deal with the appellant’s complaint that he was
not competently and effectively represented. In
S
v Tandwa & others
[2007] ZASCA 34
;
2008 (1) SACR 613
(SCA) this court dealt with the
constitutional right to be legally represented during a criminal
trial and reiterated that the
right to legal representation meant
that it should be real and not illusory and that this translated into
the right to a proper,
effective and competent defence.
[4]
It said the following (para 7):
‘
Incompetent
lawyering can wreck a trial, thus violating the accused’s fair
trial right. The right to legal representation
therefore means a
right to competent representation – representation of a quality
and nature that ensures that the trial
is indeed fair. When an
accused therefore complains about the quality of legal
representation, the focus is no longer, as before
the Constitution,
only on the nature of the mandate the accused conferred on his legal
representative, or only on whether an irregularity
occurred that
vitiated the proceedings – the inquiry is into the quality of
the representation afforded.’ (Footnotes
omitted.)
[23]
We now embark on that enquiry. The appellant employed no fewer than
11 legal representatives. We have already made reference
to the
number of postponements granted by the court below at his instance.
From his interaction with the court when he elected
to represent
himself and from his testimony it is clear that the appellant is no
shrinking violet. He was not averse to dispensing
with the services
of a legal representative when he was unhappy with the manner in
which his case was being conducted and on occasion
for no apparent
reason. When he did conduct his own defence he did not present as an
unsophisticated litigant. Once again the appellant,
in resorting to
this defence, is attempting to turn a vice into a virtue. Under
cross-examination the appellant repeatedly found
himself in
difficulty when counsel for the State asked why important issues
which he was now testifying about had not been put
by his legal
representatives to witnesses who testified on behalf of the State. He
responded by stating that he had instructed
his legal representatives
to do so but that they had failed him. These repeated responses led
to one of his legal representatives
requesting the court to release
him from further representing the appellant. Given the appellant’s
strength of character
and his very active and vigorous involvement in
his own defence, it is highly doubtful that counsel would have acted
without or
contrary to his instructions, whilst he maintained a stoic
silence. When, later in this judgment we deal with the credibility of

witnesses, including the appellant’s testimony, we will show
that he was not averse to being economical with the truth. As
stated
in the preceding paragraph, a vigorous and extensive defence was
mounted on behalf of the appellant. Cross-examination was
extensive
and such legal arguments as were required to be made as to the
admissibility of evidence or in relation to any other
issue appears
to have been dealt with thoroughly and ably. This includes
submissions that were made in relation to an application
for a
discharge at the end of the State’s case in terms of s 174 of
the CPA. As in
Tandwa
we find the appellant’s complaint concerning the quality of his
legal representation to be devoid of substance.
The
complaint concerning the prosecutor
[24]
In written heads of argument on behalf of the appellant, a number of
instances were provided which it was submitted demonstrated
that the
prosecutor unfairly put questions in cross-examination which were
factually incorrect and that Alkema J wrongly allowed.
As pointed out
on behalf of the State, at the relevant times the appellant was
legally represented and the legal representatives
were entitled to
object and did. A running record was available and each party was
entitled to refer to it and did. In any event,
this complaint is
unjustified. The State’s version of events was put to a number
of witnesses as, for example, that the community
was terrified of the
appellant. That differs from the appellant’s perspective which
is that he was kind and compassionate.
This does not mean that the
prosecutor was precluded from putting that view based on his
assessment of the evidence presented by
the State. This is one of the
aspects on which the prosecutor is criticised. Another instance
provided on behalf of the appellant
is that the prosecutor put to
witnesses that at material times the appellant was the paramount
Chief when, in fact, his brother
had been acting in his stead. The
appellant was a member of the Eastern Cape Provincial Legislature and
was away for extended periods
but did return during weekends when he
assumed the ultimate authority on Tyalara. We do not intend to deal
any further with each
instance referred to on behalf of the appellant
save to state that this complaint is unfounded.
The
complaint that the trial judge unjustifiably descended into the arena
rendering the trial unfair
[25]
We now address the appellant’s complaint that Alkema J
repeatedly and unjustifiably descended into the arena thereby

rendering his trial unfair. In
S v Rall
1982 (1) SA 828
(A) at 831A-F this
court said the following:
‘
First,
some general observations.
According
to the well-known
dictum
of Curlewis JA in R v Hepworth
1928
AD 265
at 277, which the learned Judge
a quo
obviously had in
mind in his remarks quoted above:
“
A
criminal trial is not a game . . . and a Judge’s position . . .
is not merely that of an umpire to see that the rules of
the game are
observed by both sides. A Judge is an administrator of justice, he is
not merely a figure-head, he has not only to
direct and control the
proceedings according to recognised rules of procedure but to see
that justice is done.”
Inter
alia
a Judge is therefore entitled and
often obliged in the interests of justice to put such additional
questions to witnesses, including
the accused, as seem to him
desirable in order to elicit or elucidate the truth more fully in
respect of relevant aspects of the
case. (Wigmore on
Evidence
3
rd
ed
vol 3 para 784 at 151-2.) And for that purpose, according to the
learned author (
ibid
at 159), he may put the questions in a leading form –
“
simply
because the reason for the prohibition of leading questions has no
application to the relation between judge and witness.”
There
the learned author differentiates that relation from the one between
counsel and a witness he calls. Counsel is prohibited
from putting
leading questions to his own witness because of the risk that the
witness may perhaps think that such questions are
an invitation,
suggestion, or even instruction to him to answer them, not unbiasedly
or truthfully, but in a way that favours the
party calling him. (Cf
Wigmore
para 769
; R v Ngcobo
1925 AD 561
at 564;
R v
A
1952 (3) SA 212
(A) at 222C-D.) Ordinarily that would not apply
to leading questions put by the Judge. Nevertheless, the putting of
leading questions
by a Judge should, I think, be subject to the
limitations about to be mentioned.’
Later,
in
Rall
, this court said the following (at 832C-E):
‘
A
judge should also refrain from indulging in questioning witnesses or
the accused in such a way or to such an extent that it may
preclude
him from detachedly or objectively appreciating and adjudicating upon
the issues being fought out before him by the litigants.
As Lord
Greene MR observed in
Yuill v Yuill
(1945) 1 All ER 183
(CA) at 189B, if he does indulge in such
questioning –
“
he,
so to speak, descends into the arena and is liable to have his vision
clouded by the dust of the conflict. Unconsciously he
deprives
himself of the advantage of calm and dispassionate observation.”
(See,
too, the
Jones
case
supra
[
Jones v National Coal
Board
[1957] EWCA Civ 3
;
(1957) 2 All ER 155
(CA)] at 159C-E.) Or, as expressed by
Wessels JA in
Hamman v Moolman
1968 (4) SA 340
(A) at 344E,
the Judge may thereby deny himself –
“
the
full advantage usually enjoyed by the trial Judge who, as the person
holding the scale between the contending parties, is able
to
determine objectively and dispassionately, from his position of
relative detachment, the way the balance tilts.”’
[26]
The question presently being addressed is whether Alkema J breached
any of the canons of good judicial behaviour. In this regard
several
references were made on behalf of the appellant in written heads of
argument to the record of proceedings in order to demonstrate
how the
trial judge improperly entered into the arena beyond what is
generally acceptable and how this supposedly impinged on the
court’s
impartiality. The first is a reference to Alkema J intervening when
counsel was cross-examining Stokwana’s
wife, Ms Nocingile
Sonteya, about whether a statement to the police was consistent with
her evidence. We have taken great care
to consider that part of the
record. In our view the judge was seeking to prevent unfair
examination by pointing out that a distinction
which counsel at that
stage sought to draw did not exist. The second reference is to an
instance when Wayiya was being cross-examined
and was asked whether
his deceased wife would, in respect of a particular event, have
reacted in the same way as he would. Alkema
J enquired of counsel
whether Wayiya could rightfully be expected to answer that question.
It is preposterous that that enquiry
should form the basis of a
complaint against Alkema J. The third instance complained of is where
Alkema J asked of the appellant,
whilst he was testifying, whether he
was acquainted with legislation that regulated his position as head
of his tribe and the administration
of the area over which he had
jurisdiction. The fourth was when Alkema J sought to obtain clarity
from the appellant when he was
testifying, about his evidence that
the eviction by way of the setting on fire of the dwelling of
Stokwana was at the instance
of the community. We are at a loss to
understand why these two instances form part of the complaint against
Alkema J. We do not
intend to deal with every instance referred to.
Alkema J did indeed engage with witnesses, including the appellant,
on a number
of occasions. This was perfectly understandable,
particularly since he was presiding over a trial that endured for
many years and
was attempting to keep abreast of the evidence adduced
by scores of witnesses and to ensure that he maintained a grasp of
the issues
in dispute. If anything, Alkema J was extremely patient
and indulgent throughout the trial. He took great care to ensure the
appellant
was legally represented. He erred on the side of caution by
granting the appellant a great number of postponements in the face of

an obvious sense of frustration on the part of the State. The record
proves that the learned judge’s interventions were not
tainted
by any impropriety.
Synopsis
of the evidence in relation to the arson and kidnapping charges
[27]
In the present case, the trouble that ultimately led to the
appellant’s conviction on some of the charges referred to

above, started with Stokwana’s encounters with his monarch. The
first event was that 170 of Stokwana’s goats and approximately

80 of his sheep were impounded at the instance of the appellant on
the basis that they had strayed beyond their normal grazing
area and
had wondered onto restricted areas which had been cordoned off to
enable them to recover from the previous years’
grazing.
Stokwana denied this but in any event decided to start paying off the
fine that had been imposed by the appellant to enable
the release of
his impounded stock. He paid R400 towards their release but still
owed a substantial amount of money. His stock
was released to him on
the understanding that the balance owing in respect of a fine imposed
by the King would be paid. In the
intervening period, Stokwana’s
horse was impounded. According to him there was no justification for
the horse being impounded,
but he nevertheless made the journey to
the ‘Great Place’ to pay the R20 release fee. At the time
that he paid the
fine, there was, according to Stokwana, an
unpleasant exchange between himself and the appellant’s sister
which, he testified
ended with her hurling insults at him.
[28]
Stokwana testified that he had unsuccessfully attempted to borrow
money to pay the balance of the fine. The State’s case
was that
the delay in paying the fine as well as the allegation that Stokwana
had taken his horse from the ‘Great Place’
by force
invoked the appellant’s ire and caused him to lead a march on
Stokwana’s homestead. According to the evidence
of a number of
State witnesses, including Stokwana’s wife and others who had
previously been loyal to the appellant, the
appellant accompanied by
a gaggle of his supporters arrived at the homestead and after
ordering Mrs Sonteya to remove the family’s
belongings from the
house, set fire to the main hut as well as to two others and to the
kraal in which there were nine young lambs,
including one that had
only two legs. Witnesses testified that, the appellant also set fire
to a small field of maize, which Stokwana
and his family maintained
as part of a larger garden. Stokwana’s wife testified that
there was an amount of R200 hidden in
a rafter of the main hut which
was destroyed due to the fire. The amount of R200 was money that had
been collected as part of the
funds of a local crèche for
which Stokwana acted as a treasurer. The nine lambs had all perished
due to the fire. The entire
maize crop was also lost.
[29]
The appellant’s version of events is that ‘the community’
was incensed at Stokwana’s repeated grazing
infringements and
because he had failed to pay the remainder of the fine imposed and
had been defiant by failing to present himself
at the ‘Great
Place’ when instructed to do so by the appellant. The community
therefore decided to set fire to his
homestead as a form of eviction.
The appellant stated unequivocally that he had identified with the
community’s decision
to set fire to Stokwana’s homestead
in order to compel his eviction. It was also undisputed that the
homes of all of the
complainants in respect of each of the arson
charges had in fact been constructed by them using materials such as
thatch and mud
which were all resourced from the farm.
[30]
According to a number of State witnesses, including Stokwana’s
wife the appellant had ordered the latter to accompany
him to the
‘Great Place’ after he had set fire to the homestead. She
had six very young children in attendance at the
time, a number of
whom clung to her physically. Mrs Sonteya testified that, accompanied
by her children, she followed the appellant
to the ‘Great
Place’ and that some time after they had arrived there, the
appellant told her that he had brought her
along to compel her
husband to present himself there. Mrs Stokwana testified that she had
no choice but to follow the King because
she feared him. The
appellant, on the other hand, testified that he had not kidnapped Mrs
Stokwana and the children but had merely
offered food and shelter at
the ‘Great Place’ as an act of compassion.
[31]
Stokwana had been in the fields on the farm when he was informed that
the appellant had set fire to his homestead. He borrowed
a horse and
rode towards his home. He testified that he saw the flames and
decided it best to report the matter to the police.
He laid a charge
of arson at the Bityi police station. According to Stokwana, the
police advised him to spend two nights at the
police station because
they didn’t have transport and considered it safer for him to
do so.
[32]
Mrs Sonteya testified that they were released the day after they had
been taken to the ‘Great Place’. Stokwana
returned to his
home with the police and he and his wife individually made their way
to her maiden home which also fell under the
appellant’s
jurisdiction as King of the tribe. They relocated only after
obtaining permission from Chief Zwelidumile. Stokwana
testified that
a short while after he had laid the charge referred to above, Chief
Zwelidumile instructed him to withdraw the charge.
The Chief appeared
aghast that Stokwana had even contemplated laying a charge against
the appellant, their King.
[33]
Wayiya testified that a sub-headman had approached him to persuade
his brother to withdraw the arson charges against the appellant.

Wayiya and Stokwana both testified that they discussed withdrawing
the charge and had decided that it was in both their interests
to do
so. They were keen to avoid further evils being perpetrated against
either or both of them. They attempted unsuccessfully
to get the
authorities to withdraw the charge. Thereafter they presented
themselves at the ‘Great Place’ to ask the
appellant to
accompany them so that they might collectively persuade the
authorities to withdraw the charge.
[34]
On the same day that the charge was withdrawn Mbuzeni’s house
was set alight. The appellant admits that he led a group
of his
supporters to Mbuzeni’s homestead. According to a number of
witnesses who testified on behalf of the State, the group,
on its way
to Mbuzeni’s house, passed by a number of young boys playing
football. The appellant summoned them to Mbuzeni’s
house. Their
slow response angered the appellant who punished them by causing them
to repeatedly perform ‘frog jumps’.
Thereafter he
instructed the boys to set fire to Mbuzeni’s house. They
followed the instruction because they feared him.
Mbuzeni’s
house was set on fire only after it had been emptied of its contents,
which was left in the veld on the appellant’s
instructions.
Mbuzeni’s aged mother watched in horror as the house burnt to
the ground.
[35]
As he had testified in relation to the setting on fire of Stokwana’s
homestead, the appellant stated that the community
had decided to
evict Mbuzeni by setting fire to his house. The community decided
upon this course of action because Mbuzeni had
killed someone he had
suspected of being a witch and by doing so had brought disrepute to
the appellant’s kingdom. The appellant
testified that he was
concerned about Mbuzeni walking around Tyalara brandishing a firearm.
[36]
It is common cause that at the time that Mbuzeni’s house was
set on fire he was being prosecuted in respect of the murder
of the
person he had killed. It is also unchallenged that at the time his
house was set on fire, he was in employment in Gauteng
and was
informed about that fact telephonically. Mbuzeni denied that he had
wandered through Tyalara wielding a firearm.
[37]
Upon being informed that his house had been set on fire, Mbuzeni
returned home and accompanied by his brother presented himself
at the
‘Great Place’. There, according to Mbuzeni, the appellant
imposed a fine of six cattle for the former having
brought disgrace
to Tyalara. The appellant ignored Mbuzeni’s protestations about
being subjected to two forms of punishment,
namely, whatever would
ensue from the criminal prosecution and the payment of six cattle to
the appellant. Mbuzeni’s clan
was also fined R50 per household.
Mbuzeni did not pay the fine imposed upon him. His house was set
alight on the same day and at
approximately the same time as Wayiya’s
house which was in close proximity.
[38]
As set out earlier, the appellant denied any involvement in the
setting on fire of Wayiya’s house. Witnesses on behalf
of the
State testified that there had been a meeting at the ‘Great
Place’ to discuss Mbuzeni’s position, at the
end of which
an announcement was made by the appellant that he would also evict
Wayiya because he was ‘hoarding’ Stokwana’s

livestock on Tyalara.
[39]
Wayiya testified that months after his house had been set on fire he
encountered the appellant who then admitted that he had
set fire to
the house, but said that he had done so ‘by mistake’ and
made an offer to rebuild the house. The following
exchange between
Wayiya and counsel on behalf of the appellant is worth noting:
'
MR
HOWSE
: Right. Did he admit to you that he burnt your homestead?
WITNESS
:
I took it he was admitting when he said to me he was prepared to
rebuild my homestead.
MR
HOWSE
: So did you take it from that
statement of his that it was an admission?
.
. .
WITNESS:
He called me.
MR
HOWSE
: Yes but I am just trying to get
what he said to you. If I understand you now correctly you say. All
that he said to you is that
he would help to rebuild your home, and
from that you inferred or assumed that he was admitting burning it?
WITNESS
:
The reason why I presumed that he was admitting having burnt my
homestead down, it is because when I put a question to him, as
to
what had I done to him, which deserved the burning of my homestead?
MR
HOWSE
: What did he answer?
WITNESS
:
He told me that I did nothing.
MR
HOWSE
:He then said he would assist you
to rebuild?
WITNESS
:
Yes.'
The
appellant’s version of that conversation was that all he did
was express his sympathy for the loss of Wayiya’s homestead.
He
denied that he had admitted that he had set fire to Wayiya’s
house.
The
evidence in relation to appellant’s convictions of assault with
intention to do grievous bodily harm
[40]
It is now necessary to turn our attention to the evidence presented
in relation to the charges of attempted murder, which resulted
in the
three convictions of assault with intent to do grievous bodily harm.
It is common cause that the complainants in respect
of the three
charges were forcibly brought to the ‘Great Place’ by a
rowdy group of the appellant’s supporters.
It is also
undisputed that they were brought there because the Tyalara community
was incensed because it had been alleged that
the three complainants
and the deceased were guilty of housebreaking and rape. During that
alleged crime spree they were said to
have kissed a woman in front of
her husband who was disabled and wheelchair bound. The last mentioned
allegation appears to have
been the one that caused the greater sense
of outrage.
[41]
One of the young men, Mr Malandela Sontanase (Sontanase), who had
been accused of perpetrating the acts referred to in the
preceding
paragraph testified that he was assaulted by members of the community
before he arrived at the ‘Great Place’
but not seriously
and had sustained only minor injuries. Although Mr Derrick Mlandeni
Ngcambu (Derrick), a headman and part of
the appellant’s chain
of command as well as being a relative of his, did testify that the
young men who had been brought
to him en route to the ‘Great
Place’, had been badly beaten. His evidence, however, is at
odds with the evidence of
at least one of the complainants and a
number of other state witnesses.
[42]
Derrick’s evidence as well as the testimony of another loyalist
and of two of the complainants, namely Sontanase and
Mr Welile Duma
(Duma), was to the effect that the appellant was the person
responsible for the savage beating that the three young
men were
forced to endure. They described what had occurred as follows: The
three young men were ordered by the appellant to undress
and to
perform ‘frog jumps’. He then made the three of them lie
naked on their stomachs. He then proceeded to viciously
assault them
with a sjambok. He beat them so severely that Derrick could not bear
to watch and had to depart the scene for momentary
relief. Those who
continued to witness the beating, including the two victims,
testified that he only stopped because he was physically
exhausted.
[43]
It is undisputed that the three young men were admitted to hospital
the next day. Professor Hendrick Scholtz, who testified
in support of
the State’s case, stated that had it not been for medical
intervention the trauma caused by the beating would
most likely have
resulted in the death of all three.
The
evidence in relation to the culpable homicide conviction
[44]
In respect of the charge of murder it is necessary to consider
carefully the foundations of the State’s case. There was

testimony by only one witness called by the State that after the
three young men had been beaten, the appellant had announced to
those
in attendance that they had to bring the deceased to him the
following day and that they should beat him as the others had
been
beaten. That was not corroborated by any other witness in attendance.
It should also be borne in mind that the evidence of
Sontanase and
Duma was that they were not seriously beaten en route to the ‘Great
Place’.
[45]
Derrick testified concerning the state in which the deceased was
brought to his house by members of the community who had intended

that he be taken to the appellant. According to Derrick the deceased
had been very severely beaten and exhibited very obvious signs
of
being subjected to vicious physical abuse. The deceased’s
father had witnessed him being taken towards Derrick’s
house
and appears to have been shaken by the state in which he had
encountered his son.
Evidence
in relation to appellant’s conviction on the two charges of
defeating the course of justice
[46]
In relation to the first charge of obstructing or defeating the ends
of justice, we have already referred to the evidence of
Stokwana and
Wayiya. Almost all of the witnesses on behalf of the State who had
encounters or exchanges with the King, testified
that he was a man
who ruled by fear and intimidation and would brook no resistance.
[47]
In relation to the pressure brought to bear on the deceased’s
father so as to ensure that he would not report the actual
cause of
the death of his son the evidence by a number of witnesses was that
the appellant was emphatic that mortuary staff should
be told that
the deceased had died of natural causes and that the deceased’s
father had been instructed not to report the
matter to the police.
This was the basis of the second charge of obstructing or defeating
the ends of justice. It is necessary
to record that one of the state
witnesses, Ninzo Lizo Cimela, testified that, when the deceased’s
death was first reported
to the appellant, the latter considered that
the best course of action would be to throw the body in a nearby
river. The elders
in the community, however, thought this to be
against the very basic fabric of customary law. In this instance, the
appellant heeded
their warning not to offend against tribal practice.
Approach
of the court below
[48]
Alkema J carefully considered the material parts of the evidence
adduced on behalf of the State and took into account the appellant’s

version of events. The learned judge considered the evidence
presented by the State in relation to the fear the appellant induced

in his subjects as overwhelming. He recorded that a succession of
witnesses expressed a deep fear of the appellant.
[49]
Alkema J had regard to the evidence presented by witnesses on behalf
of the State that there was a popular uprising against
the appellant
during 1996 by some members of the Tyalara community. Alongside that
evidence was the testimony of the appellant
that a few people he
considered to have criminal tendencies had initiated an uprising and
had placed his life in danger. He testified
that he had sought the
protection of a prominent family member, the former State President,
Mr Nelson Mandela. According to other
witnesses Mr Mandela placated
the crowd by ensuring them that there would be no further evictions.
[50]
Alkema J considered the testimony of witnesses for the State that
disobedience of the appellant would result in physical harm
and
injury. He was persuaded that the evidence by Mr Wofa that he was too
scared to report the death of his son to the police after
being
warned not to do so by the appellant to be true and as a result of
which he initially refused to speak to any policeman when
police
investigations commenced, was credible. The court below concluded
that the totality of the evidence presented a picture
of the
appellant as a King who ruled as a merciless despot.
[51]
Alkema J accepted the evidence of witnesses for the State that the
setting on fire of homesteads as a means of securing evictions,

occurred solely on the instructions of the appellant. The learned
judge was impressed by the evidence of Stokwana and his wife
as well
as with the evidence of Wayiya. Against their evidence and the
totality of the evidence adduced on behalf of the State,
the court
below found the appellant to be a poor witness. Alkema J described
him as follows:
‘
He
was self-righteous, at times discourteous and even contemptuous to
the court; he insisted in giving long and irrelevant explanations

without answering questions; part of his evidence is so improbable
that it may be rejected as false; his version of events seemed
to
change with every new legal representative he engaged; he testified
to material events which were never put to any State witnesses;
he
often contradicted himself or refused to answer questions, or gave
lengthy answers which were irrelevant to the question asked
or gave
incomprehensible answers. In many respects his evidence-in-chief
contradicts in material respects with what was put to
the State
witnesses. In short, he made a poor impression on the court and we
find his evidence suspicious in some respects and
downright
untruthful in other respects.’
[52]
Against that background he rejected the appellant’s explanation
that the decision to evict Stokwana and Mbuzeni by setting
fire to
their homes, was one reached by the community. In addition, the court
below had regard to a number of state witnesses who
denied that those
acts carried the community’s approval. Alkema J also took into
account that the appellant did not present
the evidence of a single
member of the community to substantiate his version of events, when,
in the face of overwhelming evidence
on behalf of the State, one
would have expected him to do so.
[53]
The court below dealt with the appellant’s assertion that the
three young men were in fact assaulted by the community
and not by
him. Alkema J took into account the appellant’s concession that
punishment for the crimes the three young men
were alleged to have
perpetrated, were beyond his jurisdiction and a matter for the SAPS.
The learned judge asked rhetorically
why the appellant, as King,
stood idly by and did not report the matter to the police? The court
below concluded the appellant’s
explanation that the three
young men had been assaulted by others was fanciful, nonsensical and
incomprehensible.
[54]
The court below accepted the evidence of Stokwana’s wife that
she and her children were ordered to go to the ‘Great
Place’
after the homestead was set on fire, in order to secure her husband’s
attendance and thereby to compel him to
pay the outstanding fine in
relation to his alleged grazing transgressions. He rejected the
appellant’s contention that he
merely gave the mother and
children shelter out of compassion.
[55]
In relation to the setting alight of Wayiya’s homestead, the
court below recorded that the State’s evidence was

circumstantial. Alkema J took into account that Wayiya’s
homestead was set on fire on the same day as Mbuzeni’s hut.
The
court below had regard to the hearsay evidence of Wayiya’s late
wife, admitted in terms of
s 3(1)
(c)
of the
Law of Evidence Amendment Act 45 of 1988
, that she had
reported to Wayiya that the appellant had arrived at the homestead
with some men, ordered all the household effects
and furniture to be
removed and then set the huts alight. The court below stated that on
its own no weight could be attached to
that evidence. Alongside that
evidence the court below took into account the evidence by Wayiya
that the appellant had admitted
that he had set fire to his house ‘by
mistake’ and that the appellant had offered to rebuild the
house.
[56]
The appellant testified that there had been bad blood between
Stokwana and his brother, Wayiya, and speculated that Stokwana
was
probably to blame for Wayiya’s house being set on fire.
According to Wayiya, he and Stokwana, at that time, were at the
Bityi
police station to withdraw the charge of arson against the appellant
that had been preferred by the latter. Wayiya and Stokwana
were
adamant that there had been no bad blood between them.
[57]
The court below considered the evidence of Derrick concerning a
meeting that took place on 20 July 1995 to discuss Mbuzeni’s

eviction. According to Derrick, the appellant, at that meeting,
announced that Wayiya’s family was also to be evicted because

Wayiya was harbouring Stokwana’s livestock and the appellant
had ordered everyone to proceed to Wayiya’s homestead.
Derrick
testified that he arrived at the homestead only after it had already
been set alight. The court below took into account
that Derrick had
been a witness who was warned in terms of
s 204
of the CPA. The court
found that Derrick was not a good witness and that he was often vague
and contradictory, but could find no
reason for rejecting his
evidence in relation to the setting on fire of Wayiya’s house.
Against all the circumstances set
out above, the court below
concluded that Derrick’s evidence that the appellant had
ordered the eviction of Wayiya and ordered
members of the community
to accompany him to the homestead, had a ring of truth to it. The
court also took into account that there
was a pattern to the manner
in which the appellant behaved in relation to the setting on fire of
the homes of Stokwana, Mbuzeni
and Wayiya. The court rejected the
appellant’s evidence that he had accompanied men to Wayiya’s
homestead only after
they had received a report that it had been set
on fire and that he went there only to assist to douse the blaze.
[58]
The court below, in rejecting the appellant’s defence that in
setting on fire his own property he could not be guilty
of arson,
said the following:
‘
[262]
It is trite that when developing common law, including criminal law,
the court must promote the spirit, purport
and objects of the Bill of
Rights. (s.39 (2) of the Constitution). Section 26 of the present
Constitution (unlike the interim Constitution)
provides that everyone
has the right to have access to adequate housing. Sub-section 3
provides:
“
No
one may be evicted from their home, or have their home demolished,
without an order of court made after considering all the relevant

circumstances.”
[263]
I therefore have no doubt that, as our law stands today, arson is
committed even if a person sets his or
her own immovable property on
fire with the intention of injuring another. By injury is not meant
only patrimonial loss, but it
also includes the depravation of
another’s constitutional rights to housing and not to have his
or her home demolished or
destroyed without an order of court.
[264]
The defence that the accused set his own property alight must
therefore fail.’
It
is necessary to record that before stating what is set out above, the
court below had regard to the development of our law in
respect of
the crime of arson and had regard, inter alia, to the decision of
this court to
R v Mavros
1921
AD 19
(A) and concluded that a person could be guilty of arson if one
sets fire to one’s own property with the intention to injure

another.
Conclusions
[59]
We agree fully with the characterisation by the court below of the
manner in which the King ruled. His behaviour was all the
more
deplorable because the victims of his reign of terror were the
vulnerable rural poor, who were dependent upon him. Our Constitution

does not countenance such behaviour. We are a constitutional
democracy in which everyone is accountable and where the most
vulnerable
are entitled to protection.
[60]
We agree fully with the court below in its characterisation of the
appellant as a witness. We are in full agreement in relation
to the
factual findings by Alkema J concerning the charges of arson. That
conclusion could safely be reached even without consideration
of the
evidence Wayiya’s deceased wife tendered by way of the
provisions of the Evidence Amendment Act. Insofar as there
appears to
have been a dilution under cross-examination, of Wayiya's evidence
that there had been an admission by the appellant
that he had set
fire to the house, it is necessary to take into account that counsel
on behalf of the appellant appeared to have
accepted that there had
been an offer to rebuild Wayiya's house. In our view, Wayiya's
reasoning referred to in paragraph 39 above
was justified. We can
find no flaw in the reasoning leading to the conclusion that the
appellant was involved in all three incidents.
[61]
We now turn to consider the appellant’s defence, namely that he
could not be found guilty of arson because he had set
fire to his own
immovable property which, according to South African law, was not a
crime. Simply put, we consider whether the
crime of arson can be
committed when a person sets fire to his own immovable property. The
submission on behalf of the appellant
was that the farm Tyalara on
which the events in question took place was registered in his name
and the structures which he had
set alight had acceded to the land
and therefore belonged to him and he could thus not be convicted of
arson since the offence
cannot be committed when one sets fire to
one’s own property.
[62]
A primary problem for the appellant is that whilst the farm is
registered in his name, the restrictions contained in the title
deed
are significant. They are, inter alia, as follows:
‘
(II)
That the piece of land hereby granted shall not be alienated or
transferred unless the consent of the Governor to such alienation
and
the approval of the new holder, shall have been first had and
obtained….
(XIII)
That the piece of land hereby granted shall not be capable of being
devised by Will, but upon the deceased of the Grantees
shall devolve
upon and be claimable according to the rule of primogeniture by one
male person to be called the heir and to be determined
by the Table
of succession contained in Section 24 of the Glen Gray Act, 1894.’
These
restrictions reflect that the land is held by the appellant as
hereditary monarch for the benefit of his tribe and subjects.
He may
not alienate the land without State approval. In these circumstances
he can hardly be heard to claim that the property is
his to set to
fire to at will. But even if one were to accept that he was the owner
of the immovable property as conventionally
contemplated, the problem
that arises is that the development in our law, referred to in the
paragraphs that follow, is contrary
to the submission on his behalf,
namely, that he could, with impunity set fire to the immovable
property because he is the owner.
[63]
As alluded to earlier, it was accepted by counsel on behalf of the
appellant that for all intents and purposes a charge of
arson in
terms of s 40 of the TPA referred to above can be regarded as a
charge in terms of the common law. According to J R L
Milton in
South
African Criminal Law and Procedure
:
‘
Arson
consists in unlawfully setting an immovable structure on fire with
intent to injure another.’
[5]
C
R Snyman states:
‘
A
person commits arson if he unlawfully and intentionally sets fire to:
(a)
immovable property belonging to another; or
(b)
his own immovable insured property, in order to claim the value of
the property from the insurer.’
[6]
Snyman
appears to contemplate that the only basis on which a person who sets
fire to his own immovable property can be found guilty
of arson, is
when he does so in order to defraud an insurer. In other words, there
is a very limited sphere within which setting
fire to one’s own
immovable property can lead to criminal liability. The learned author
is critical of that exception to
the rule. He acknowledges that this
court in
Mavros
has held that one could be guilty of arson
when one sets fire to one’s own immovable property in order to
claim the value
of the property from an insurer. However, he states
the following:
‘
It
would have been better to punish this type of conduct as fraud
instead of arson, but the courts will in all probability not depart

from the appeal court’s view that such facts amount to arson
and this is the reason the crime was defined above in terms
including
this type of situation.’
[64]
J R L Milton, deals with the development of our law in relation to
the crime of arson.
[7]
The
learned author points out that, at an early stage, our courts had to
decide whether arson in South African law was the arson
of English
law, in which event the setting on fire of one’s own property
was not a crime.
Brandstichting
of the Roman-Dutch law was such that one could be punished for
setting fire to one’s own property. With reference to the

restriction in South African law, of limiting arson to the setting on
fire of immovable property the author submits that the restriction

was influenced by the concept that the purpose of the crime was to
protect rights of habitation. He submits that the preferable
view is
that the crime exists to protect, amongst other things, economic
interest in property and that there is no persuasive or
compelling
reasons to restrict the ambit of the crime to the burning of
habitation. In dealing with the question whether one can
commit arson
in respect of one’s own property, the author states that there
is some Roman-Dutch authority for the proposition
that an owner who
burns his own property with intent to injure another commits
arson.
[8]
Over a century ago in
R
v Hoffmann; R v Saachs & Hoffman
(1906) 2 Buch AC 342
at 346-347, the court said the following:
‘
Where
a person attempts to set fire to the house of another person he is
guilty of an attempt to commit arson, whether there is
any intent to
fraudulently obtain insurance money or not. Where a person burns his
own house, the question whether he is guilty
of “brandstichting”,
or arson, must, under our law, depend upon the further question
whether the deed was done with
the object of injuring others (
Van
der Linden
, 2, 4, 7). If the object be
to defraud an insurance company the intent would certainly be to
injure another so as to bring the
offence within the definition.’
A decade and a half later, this court, in
Mavros
,
said the following (at 23-24):
‘
The
facts alleged in the indictment therefore amount to
brandstichting
;
but that it is said is not the crime charged; the term arson does not
cover
brandstichting
and the facts laid do not constitute arson. The judgment in
Rex
v Enslin
(2 App. Court, p. 69), no
doubt supports that contention. The accused had been convicted of
arson for wrongfully and maliciously
setting fire to certain stacks
of barley, the property of another person with intent to injure the
owner. The Cape Court of Appeal
quashed the verdict, holding that
whether or not Enslin might have been convicted of “
brandstichting”
he could not be convicted of arson. It
was argued for the Crown that the word “arson” had been
used as the nearest English
equivalent for the
incendium
or
brandstichting
.
But that argument found no favour with the Court, which applied to
the language of the indictment its limited English meaning.
The
judgment was delivered by De Villiers, C.J., who some years later
would appear to have modified his views. In
Rex
v. Hoffman
(2 A.C., p 346), he employed
the term
brandstichting
and arson as synonymous expressions. His remarks in the later case
were
obiter
merely; but they are not consistent with the reasons in
Rex
v. Enslin
. I do not think we should
follow Enslin’s case and give to the word “arson”
in the present indictment its strict
English interpretation. Because
I am satisfied that arson is in South African practice used to denote
the corresponding, but somewhat
wider, crime of our law. When an
indictment charging a Roman-Dutch law offence is drafted in English,
it is convenient, if not
necessary, to describe the offence by the
English word which most accurately denotes it. And the use of such a
word need not carry
with it the consequences which would accompany it
in an English indictment. Now “arson” is the nearest
equivalent to
brandstichting
;
it is the word which would certainly be used in translating into
English a Dutch indictment charging the latter offence. In every

translation which I have been able to consult I find that the offence
of
brandstichting
is described as arson, and I do not know how else it would have been
possible to describe it. It is not strange, therefore, to
find the
statement made in a very careful textbook that arson is employed in
South African indictments to denote the wider crime
of
brandstichting
(Gardiner and Lansdown,
p. 1162). In my
opinion it was so employed here. And that being so, the point
reserved must be answered in favour of the Crown,
and the conviction
must stand.’
In
the passage immediately preceding the above excerpt, Innes CJ said
the following (at 22):
‘
In
my opinion, therefore, we should sanction that procedure by holding
that the crime of
brandstichting
is
committed by a man who sets fire to his own house wrongfully,
maliciously and with intent to injure or defraud another person.’
The
word ‘or’ in the last mentioned passage is disjunctive.
It would thus seem that Snyman interpreted the decision
in
Mavros
too narrowly. Simply put, the effect of
the decision is that one can be guilty of arson when one wrongfully
and/or maliciously sets
fire to one’s own immovable property
either with the intention to injure another person or to defraud
another person.
[65]
In
S v Van Zyl
1987 (1) SA 497
(O) the appellant, a builder, had been convicted of
arson after having burnt down a house which belonged to him but which
had been
inhabited by the complainant. The conviction was contested
on the basis that the common-law crime of arson did not extend to a
person burning down his own immovable property. The court, after
having examined the old authorities and modern academics who took
a
view that supported the appellant, held that arson can be committed
where a person sets fire to his own immovable property with
the
intention to prejudice the property interests of another person.
[66]
In an article entitled ‘The nature of the crime of arson in
South African Law’, Professor S Hoctor,
[9]
in essence agrees with the approach adopted by Milton referred to in
para 27 above. In her concluding remarks she states the following:
‘
As
Milton points out, the argument that the owner and occupier of a
house is free to burn it down if he chooses to do so is problematic.
.
. .
Although
the act of destroying one’s own property may not be unlawful in
itself, it may be submitted that, as with the crime
of extortion, the
intention with which the accused acts will serve to convert an
ostensibly lawful act into an unlawful one. This
fits with the
assessment of Carpzovious and Moorman in the
Mavros
case
regarding the centrality of the actor’s intent, and that “the
essence of crime is the intent with which the act
is committed”.
It may further be noted that since
dolus eventualis
would
suffice for the purposes of liability, provided that the accused
foresaw the possibility that in setting fire to his or her
own
property, damage could result to the property of another, and
proceeded reckless of such possibility, liability for arson could

ensue.’ (footnotes omitted)
We
endorse the views espoused by Milton and Professor Hoctor referred to
above. The conclusions reached by them are in accordance
with the
decision of this court in
Mavros.
Having regard to the factual findings referred to above the
compelling conclusion is that the appellant set fire to each of the

complainants’ homes with the intent to injure. The conviction
on the three charges of arson was thus well founded.
[67]
In respect of the appellant’s conviction on the charge of
kidnapping, we agree that the appellant’s version that
he was
acting out of compassion is implausible and can be rejected out of
hand. It is a twisted mind that first deprives a mother
and her
infant children of the comfort of a home by torching it, inducing
fear and trepidation, and then suggests that he acted
out of
compassion in offering them shelter and food, after ordering them to
accompany him to the ‘Great Place’.
[68]
In dealing with the attempted murder charges which involve the
assaults on the three young men, the court below recorded that
the
appellant had disputed the extent of his involvement in the assaults.
Alkema J noted that the appellant testified that when
he first saw
the three young men in a hut at the ‘Great Place’ they
already been brutally and severely beaten by their
captors. He took
into account that the appellant had testified that they were so
savagely beaten that ‘[n]o sane person would
have assaulted
those three young men given their condition at that stage. According
to the appellant he had applied three light
strokes over their
buttocks in an attempt to appease the community and prevent them from
being killed.
[69]
It is necessary to set out in some detail what was stated by the
court below in relation to the appellant’s version of
events:
‘
[269]
This court has no hesitation in rejecting the version of the accused
as palpably false. As in the case of the
burning of the homesteads as
a means of evicting the entire families from Tyalara, he again seeks
to hide behind the faceless community.
I do not intend to repeat the
criticism of the accused's explanations in this regard, but merely
refer to some aspects relevant
to those particular events.
[270]
Firstly, the allegation that it was the community who had assaulted
the three victims, fly in the face of
the weight of the evidence
before the court. Derrick's evidence that the three had only been
lightly assaulted by their captors
is corroborated by the victims
themselves who testified. Whereas there is no doubt that they were
also assaulted by their captors,
the overwhelming weight of the
evidence is that it was the accused who inflicted the most serious
injuries.
[271]
Secondly, Derrick's evidence that he ordered the assaults to cease
after the three were brought to his homestead
the previous evening is
confirmed by the victims who testified that they were not further
assaulted after being taken to Derrick's
homestead the previous day.
[272]
Thirdly, the three victims were taken on foot to the Great Place the
following day. After they were assaulted
at the Great Place they were
unable to walk, and Malandela was forced to stay overnight. The other
two were transported. If they
received the major injuries before
taken to the Great Place, they would have been unable to walk there.
[273]
Fourthly, it is improbable in the extreme that they were assaulted by
the community at the Great Place after
they got there and before the
accused arrived. According to the victims themselves, it was the
accused, and not the community who
ordered them to undress and
prostrate themselves on the floor. They were so savagely beaten by
the accused that Derrick, a chief
and loyalist to the King, could
bear it no longer and left the hut. The accused confirms that Derrick
left the hut, and testified
that he went outside to speak to Derrick
whilst Ninzo continued with assaults inside. The evidence shows
clearly, in our view,
that the assaults did not receive the approval
of the community present, and there is no support whatsoever for the
accused's contention
that it was the community, and not him, who
inflicted the most serious injuries.
[274]
Fifthly, the evidence is overwhelming that no subject of the King
would dare to disobey his orders. Anyone
doing so ran the risk of his
or his family's homestead being burnt down and evicted. The accused
ruled with fear and trepidation.
Ninzo testified that he will cut the
throat of a person with a knife if so ordered by the King, and this
sentiment was confirmed
by many State witnesses, including the
accused's own confidant (
"informer"
) Derrick. To
suggest against the weight of this evidence, as the accused attempts
to do, that he was unable to put a stop to the
assaults by the
community on the three victims, or that they would have disobeyed his
orders if he had instructed them to stop
the assaults, is simply so
improbable to be incredible.
[275]
Sixthly, and despite being given numerous opportunities by the court,
the accused was unable to explain
why it was necessary for him to
continue with the assault, even with
"light punishment"
given the serious condition of their state of health when he saw them
(
"no sane person would continue to assault them in view of
their medical condition)."
His explanation, if in fact it
can be said to be an explanation, that he did so to appease or pacify
the community, or to prevent
them from further assaulting or even
killing them, is so incredible that it defies belief. On his
instructions, no one touched
the personal belongings and effects of
those whose huts were burnt down and whose belongings were placed
outside the huts before
the acts of arson, not even Mbuzeni's own
mother. Why would they defy his orders to cease the assaults? What
stopped the accused
from ordering the assaults to cease? To suggest
that it was his fear for the community, is beyond belief.
[276]
Finally, on the accused's own version, he realized that the community
may kill the three victims if they
were to be released from his
custody. Yet, he is unable to give any meaningful explanation why,
instead of administering
"light punishment,"
he did
not refer the three to the police for investigation or to a medical
clinic for treatment after their capture. The three
were in any event
released by him after the assaults. He agreed that he had no
jurisdiction over the suspected crimes allegedly
committed by them.
His only explanation, if it can be termed an explanation, is that it
was
"people's justice"
or
"jungle justice."
But even if it was, he could not explain why the crimes, including
the assaults on all four and the death of Saziso, was never
reported
to the police.
[277]
There are a number of other unsatisfactory features in the evidence
of the accused which warrant it to be
rejected as untruthful, but in
view of my remarks above coupled with those earlier in this judgment,
I do not believe it is necessary
to further burden this judgment with
such irregularities. It suffices to repeat that this court  has
no hesitation in rejecting
the version of the accused as far-fetched
and false insofar as it differs from the State version in relation to
the assaults on
the three victims.'
[70]
We are in agreement with the essence of what was stated by Alkema J
as set out in the preceding paragraph.
[71]
In respect of the murder charge Alkema J took into account that the
deceased was implicated as the ringleader in respect of
the offences
alleged to have been committed with the other three young men. It is
true that it was undisputed that the appellant
had issued an
instruction that the deceased be brought to the ‘Great Place’.
The court below accepted that there was
no evidence that the
appellant himself had assaulted the deceased. Alkema J accepted that
the appellant was not even present when
the deceased was assaulted.
It was common cause that the deceased had died as a result of severe
assaults on him perpetrated by
members of the community. The court
below considered the appellant’s involvement in intimidating
the deceased’s father
so as to cause him not to report the
matter to the police as being inextricably bound to the question of
his guilt in relation
to the death of the deceased.
[72]
The court below took into account the testimony of Mr Mthata Xoko who
was the only witness that testified that when the appellant
issued
the instruction that the deceased be brought to the ‘Great
Place’ he also issued an instruction that the deceased
should
be assaulted ‘in the same manner that had happened to . . . his
co-suspects’ before being brought to the ‘Great
Place’.
The court below took the view that Mr Xoko was a credible witness and
accepted his evidence. Alkema J concluded that
the evidence shows
that the appellant expected the community to assault the deceased
after they had captured him and reasoned that
having issued the
instruction he ought to have foreseen the death of the deceased.
Alkema J concluded that the appellant’s
negligence caused the
deceased’s death and that he was thus guilty of culpable
homicide.
[73]
Mr Xoko was the only witness who testified that this instruction was
given. The other State witnesses denied this and testified
that the
instruction was that the deceased should be brought to the ‘Great
Place’. In any event, as recorded above,
the other three young
men had not been severely assaulted before they were brought to the
‘Great Place’. For these
reasons the culpable homicide
conviction cannot stand and as Counsel for the State accepted before
us it falls to be set aside.
[74]
In relation to the counts relating to the intent to defeat the course
of justice, first, the court below held that the evidence
clearly
showed that the appellant had directly and indirectly exerted
pressure on Stokwana to withdraw the arson charge. The court
below
added that it was clear that the appellant had also used others to
exert pressure on Stokwana to withdraw the charge.
[75]
In respect of the appellant’s actions in relation to the father
of the deceased, the court below said the following:
‘
It
[the charge] relates to the accused’s instruction to Koto Wofa
not to report the death of his son Saziso to the Police;
to falsely
inform the mortuary that Saziso had died of natural causes; and not
to consult an attorney or obtain legal advice. I
have no doubt that
this offence has been established on the evidence. The instructions
were coupled to threats of eviction if not
obeyed.’
[76]
We can find no flaw in the reasoning and conclusions by the court
below as set out in the preceding two paragraphs. The convictions
on
those two counts were fully justified.
[77]
As a final note on the merits, a recurring theme in the defence
raised by the appellant was the astonishing submission that
it should
be understood that the appellant was acting in the best interest of
his people and by resorting to his brand of justice
he was merely
seeking to protect them from outside influences and upholding
customary law. In this regard the appellant would do
well to have
regard to what was stated on behalf of the State by Professor Digby
Sqhelo Koyana, namely, that customary law demanded
that a King
ensures the maintenance of law and order, protects the life and
security of his people, act compassionately with due
regard to the
dignity of his subjects. More importantly, our constitutional order
will not countenance the kind of conduct the
appellant was guilty of.
[78]
It is now necessary to turn our attention to the appellant’s
contention that the cumulative effect of the sentences imposed
was
too severe. It is also necessary to consider the impact on the
effective sentence of the setting aside of the culpable homicide

conviction.
[79]
It will be recalled that in respect of the counts of arson the
appellant was sentenced to five years’ imprisonment on
each
count, but the sentences were ordered to run concurrently. In
addition, the sentence of one year’s imprisonment imposed
in
relation to the kidnapping charge and the sentence of one year’s
imprisonment imposed in respect of the conviction of
defeating the
course of justice relating to the pressure exerted on Stokwana were
also ordered to run concurrently with the five
years’ sentence
imposed in respect of the arson convictions. Having regard to the
callous manner in which the acts of arson
were perpetrated, as well
as taking into account that the appellant involved members of the
community in perpetrating those deeds,
the sentences might well be
considered to have been too lenient. This is especially so if one
considers that the kidnapping of
Stokwana’s wife and children
followed upon the setting on fire of their home and demonstrates a
particularly callous mind
set.
[80]
In respect of the appellant’s convictions of assault with
intent to do grievous bodily harm, it is necessary to remind

ourselves that the beatings, in full public view, continued until the
appellant was exhausted and had it not been for medical intervention,

the three young men would probably have died. The appellant was
sentenced to five years’ imprisonment in respect of each

conviction and the sentences were ordered to run concurrently. The
appellant is extremely fortunate not to have been sentenced
to a far
longer period of imprisonment on those counts.
[81]
In relation to the pressure exerted on the deceased’s father
not to report the true circumstances of his son’s
death to the
police or any other authority, the appellant was sentenced to two
years’ imprisonment and it was ordered to
run concurrently with
the sentence of 10 years’ imprisonment imposed in respect of
the culpable homicide conviction. Considering
the insensitive manner
in which the deceased’s father was dealt with when the body was
delivered to him and the further indignity
that he had to endure when
he was fined because it was said that his son had brought dishonour
to the King, the sentence imposed
can hardly be described as severe.
[82]
What remains to be considered is the effect of the setting aside of
the culpable homicide conviction and the related sentence.
The
sentence of two years’ imprisonment imposed in respect of the
pressure exerted on the deceased’s father can no
longer run
concurrently with the sentence imposed in respect of the culpable
homicide conviction. Five years of the ten year sentence
in respect
of the culpable homicide conviction were ordered to run concurrently
with the sentences imposed in respect of the three
convictions of
assault with intent to do grievous bodily harm. It was on that basis
that the effective sentence imposed by the
court below was 15 years’
imprisonment. As is more graphically demonstrated by the substituted
order set out hereafter, the
falling away of the culpable homicide
conviction and the related sentences result in a new effective
sentence of 12 years’
imprisonment. The appellant’s
contention that the effective sentence is too severe is thus
rejected. The lesson that cannot
be emphasised enough is that persons
in positions of authority such as the appellant are obliged to act
within the limits imposed
by the law and that no one is above the
law. The Constitution guarantees equal treatment under the law. The
appellant behaved shamefully
and abused his position as King. The
period of imprisonment he is to serve is no more than just deserts
for what, given his position
of authority, are after all particularly
heinous crimes.
[83]
For the reasons set out above, the appeal succeeds only to the
limited extent set out in the order that follows:
(a).
Save in relation to the conviction of culpable homicide and the
consequent sentence, the appeal is dismissed.
(b).
The conviction of culpable homicide and the sentence of ten years’
imprisonment imposed in respect of that conviction
are set aside.
(c).
The order by the court below in relation to sentence is substituted
as follows:
‘
1.
In respect of the arson charges, namely Counts 1, 14 and 15, the
accused is sentenced to FIVE (5) YEARS IMPRISONMENT in respect
of
each count.
2.
In respect of the kidnapping charges, namely counts 5, 6, 7, 8, 9, 10
and 11, which is taken as one count, the accused is sentenced
to ONE
(1) YEAR IMPRISONMENT.
3.
In respect of the charge relating to defeating the ends of justice by
unduly influencing Mr Stokwana Sonteya to withdraw the
arson charges,
the accused is sentenced to ONE (1) YEAR IMPRISONMENT.
4.
All the sentences referred to in paragraphs 1, 2 and 3 above shall
run concurrently with each other, resulting in an effective
sentence
of FIVE (5) YEARS IMPRISONMENT in respect of all the aforesaid
charges.
5.
In respect of the assault charges, namely Counts 24, 26 and 28 the
accused is sentenced to FIVE (5) YEARS IMPRISONMENT in respect
of
each count.
6.
The sentences of five (5) years in respect of the aforesaid assault
charges shall run concurrently with each other.
7.
In respect of the charge relating to defeating the ends of justice by
concealing the death of Saziso Wofa, the accused is sentenced
to TWO
(2) YEARS IMPRISONMENT.
8.
The accused is thus sentenced to an effective term of TWELVE (12)
YEARS IMPRISONMENT.’
_____________________
M S Navsa
Judge of Appeal
_______________________
E D Baartman
Acting Judge of Appeal
APPEARANCES:
FOR
APPELLANT:

B C Dyke (with him C van Rooyen)
Instructed
by:
Mbuyisa
Neale Attorneys, Johannesburg
McIntyre
Van der Post, Bloemfontein
FOR
RESPONDENTS:
N J
Carpenter (with him N Majova)
Instructed
by:
Director
of Public Prosecutions, Mthatha
Director
of Public Prosecutions, Bloemfontein
[1]
As
recorded by the court below, the appellant derived his powers,
duties and functions from the Transkei Authorities Act 4 of
1965 and
his area of jurisdiction is regulated by the Black Administration
Act 38 of 1927.
[2]
This
was so because, in essence, it equated with the common law
definition of arson.
[3]
Section
204 provides that when the prosecution calls a witness who will be
required to answer questions which may incriminate
him or her with
regard to an offence specified by the prosecutor, the court shall
inform the witness that he is obliged to give
evidence, that
questions may be put to him/her with regard to the specified
offence, that he/she will be obliged to answer any
question
notwithstanding that the answer may incriminate him or her and that,
if he/she answer frankly and honestly all questions
put to him/her,
he/she shall be discharged from prosecution with regard to the
offences specified or with regard to any offence
in respect of which
a verdict of guilty would be competent.
[4]
See
para 7
et
seq
.
[5]
J
R L Milton
South
African Criminal Law and Procedure
Volume
2:
Common-Law
Crimes
3
ed (1996) at 777.
[6]
C
R Snyman
Criminal
Law
5
ed (2008) at 548.
[7]
J
R L Milton (op cit) at 778
et
seq
.
[8]
In
this regard, see the reference to the authorities at 779.
[9]
Shannon
Hoctor ‘The nature of the crime of arson in South African Law’
(2013) 19(2)
Fundamina
321.