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[2010] ZAWCHC 585
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Tyawana v S (A68/10, A402/10) [2010] ZAWCHC 585 (30 November 2010)
15
DPP
REFERENCE NO: 9/2/5/1-202/10
MAGISTRATES
COURT APPEAL NO: WSH124/08
HIGH
COURT CASE NUMBER: A68/10
A402/10
In
the matter between:
NDIKHO
TYAWANA
…................................................
Appellant
and
THE
STATE
…....................................................
Respondent
JUDGMENT
DELIVERED ON 30 NOVEMBER 2010
1.
On 12 June 2008 a meeting was held in Worcester town hall, which was
convened by the provincial leadership of the African National
Congress. The purpose of the meeting was to convey to the regional
leadership that a decision had been taken to disband the Boland
Region of the ANC. The decision was contentious, and appeared to
cause dissatisfaction among a group of ANC supporters or members.
One of the parties invited to address the said meeting on 12 June
was Ncebisi Skwatsha. He arrived at the venue accompanied by
two
fellow ANC office bearers, Messrs Ozinski and van den Heever. On
their arrival, they found a group of people singing and
dancing
outside the hall. Certain members of this group directed abusive
language towards Skwatsha and jostled and hit him as
he was making
his way to the entrance of the town hall. Skwatsha and his two
companions managed, with some difficulty, to make
their way into the
hall, and the meeting commenced. Some twenty minutes later the door
was kicked open, and the same group which
had been dancing, singing
and verbally abusing Skwatsha entered the hall. They picked up
chairs and threw them at the people
already gathered in the hall and
certain of their members proceeded to the front of the hall where
Skwatsha and other office
bearers were standing. Fighting broke out.
In the ensuing fracas Skwatsha was stabbed in the right posterior
area of the neck.
He was rushed to hospital where he had his wound
explored and thereafter stitched up. The Appellant was arrested for
the stabbing
of Skwatsha. He was charged with attempted murder,
tried in the Regional Court, convicted, and sentenced to eight years
imprisonment,
of which three suspended for five years. He appeals
against his conviction only.
2.
The facts outlined above are not in dispute. What is disputed is
what occurred after the protesting group had gained entry
to the
hall, whether the Appellant was part of the group which attacked
Skwatsha and his fellow office bearers, and whether the
Appellant
was the person who stabbed Skwatsha.
3.
The evidence of Skwatsha was that he, together with certain other
officials, was seated at the front of the hall. The meeting
had
already commenced when the group who had caused the disturbances
outside kicked the door in, entered the hall and began throwing
chairs at those in the front of the hall. He was hit on the right
arm by one of these chairs. A general melee then ensued, during
which Skwatsha received a number of blows and he, in turn, tried to
fight back against those who were attacking him and his ANC
provincial colleagues. It was during this scuffle that he was
stabbed in the neck. He had not initially realise that he had been
stabbed, only becoming aware of this fact when he saw blood on his
shirt. At about the same time he became aware that one of
the
assailants, who was standing approximately two metres in front of
him and facing him, was carrying a knife. He saw no one
else in the
group wielding a knife. He indicated, in his examination in chief,
that the person he saw carrying a knife was the
Appellant.
4.
In cross-examination, Skwatsha confirmed, he had not seen his
assailant stabbing him. He had seen and felt the Appellant strike
him in the neck, but did not at that moment know that he had been
stabbed, only becoming aware of this a short while later when
he saw
that he was bleeding. He was unable to indicate precisely where the
Appellant's blow had landed, explaining that he had
been dealt
various blows by the group attacking him.
5.
Novantu Bushawana testified that she was present in the Worcester
town hall when the attack on Skwatsha occurred. Her undisputed
evidence was that she had known the Appellant for more than ten
years. She saw the Appellant take out a knife, which she described
as having a brown handle and a blade of approximately seventeen
centimetres, and stab Skwatsha in his neck. According to her,
Skwatsha was seated at the time and she did not notice any people
other than the Appellant in Skwatsha's immediate vicinity.
She also
did not see Skwatsha and any members of the protesting group
exchanging blows. After the incident, she pointed the Appellant
out
to the police as the person who had stabbed Skwatsha.
6.
Max Ozinski testified that he was standing next to Skwatsha when
about ten to fifteen members of the disruptive group burst
into the
hall, and proceeded towards the front of the hall. They started
throwing chairs. One of these attackers ran faster than
the others
in the group and, on reaching the front of the hall, attacked
Skwatsha. At that stage Ozinski was under the impression
that this
person was hitting Skwatsha. Ozinski pulled this assailant away from
Skwatsha, and wrestled him to the floor. While
he was busy doing
this someone called out that Skwatsha had been stabbed. Throughout
this incident he had not noticed the Appellant
holding a weapon, and
did not see him actually stab Skwatsha. Ozinksi managed to get a
good look at the face of the person he
wrestled to the ground,
stating that he was able to recall the person's face and pointed the
Appellant out as the person in question.
He testified that, while he
did not know the Appellant well prior to the meeting, he had seen
him around at ANC gatherings in
the Worcester area.
7.
The Appellant applied for his discharge at the close of the state's
case. That application was refused. He thereafter elected
not to
testify, and closed his case without leading evidence. The
consequence of his failure to testify, notwithstanding the
direct
evidence identifying him as the person who had attacked Skwatsha,
and (according to Ms Bushawana) as the one who performed
the
stabbing, is that there is no evidence rebutting the evidence that
the Appellant was the perpetrator. In
S
v
Mthetwa
1972
(3) SA 766
the
court, at
769
B
said
the following:
"(a)
Where the State case against an accused is based upon circumstantial
evidence and depends upon the drawing of inferences
therefrom, the
extent to which his failure to give evidence may strengthen the
inference against him usually depends upon various
considerations.
These include the cogency or otherwise of the State case, after it
is closed, the ease with which the accused
could meet it if
innocent, or the possibility that the reason for his failure to
testify may be explicable upon some hypothesis
unrelated to his
guilt; see
R
v Ismail,
1952(1)
SA 204 (AD) at p. 210, andS\
Letsoko
and Others,
1964(4)
SA 768 (AD) at p. 776B-D.
(b)
Where, however, there is direct
prima
facie
evidence
implicating the accused in the commission of the offence, his
failure to give evidence, whatever his reason may be for
such
failure, in general
ipso
facto
tends
to strengthen the State case, because there is then nothing to
gainsay it, and therefore less reason for doubting its credibility
or reliability. "
8.
On appeal it was, firstly, submitted that there was no acceptable
evidence identifying the Appellant as the person who stabbed
Skwatsha. The need to carefully and cautiously evaluate evidence of
identification was emphasised in
S
v
Mthetwa
,
supra
at
768
A to C:
"Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution.
It is not enough for
the identifying witness to be honest: the reliability of his
observation must also be tested. This depends
on various factors,
such as lighting, visibility, and eyesight; the proximity of the
witness; his opportunity for observation,
both as to time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility;
the accused;s
face, voice, build, gait, and dress; the result of identification
parades, if any; an, of course, the evidence
by or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in a particular
case, are not individually
decisive, but must be weighted one gains the other, in the light of
the totality of the evidence,
and the probabilities. "
9.
There are three factors which have a bearing on the issue of whether
the Appellant was correctly identified as the assailant.
Firstly,
the Appellant was well known to Ms Bushawana, and she unequivocally
identified him as the person who had carried out
the stabbing. The
Appellant was also not a complete stranger to Ozinski who had seen
him at previous ANC meetings. Both Ozinski
and Skwatsha stated, in
evidence, that they recognised the Appellant as the one who had
attacked Skwatsha and their evidence
in this regard was not
challenged, in any meaningful fashion. Where a state witness
identifies an accused as the perpetrator
of the offence is question,
the basis of that identification should at least be probed and
challenged in cross-examination, and
any factors allegedly
detracting from the reliability of such identification should be
pertinently put to the witness. This was
not done. Furthermore, it
appears from questions posed to Skwatsha in cross-examination that
the Appellant admitted to having
been present in the Worcester town
hall, when the fracas already described above broke out. This is
thus not an instance where
the state witnesses mistakenly identified
someone who claims not to have been present at all.
10.
All these factors demonstrate, in my view, the reliability of the
identification of the Appellant as the one who attacked
Skwatsha.
The suggestion that he was not properly identified in the evidence
is incorrect.
11.
Appellant also contended, on appeal, that the evidence did not
establish, with the required certainty, that he had been the
person
carrying the knife nor, it was suggested, that Skwatsha had been
wounded with a knife. The submission, in the argument,
was that one
of the punches thrown at Skwatsha might have cause the neck wound. I
find it difficult to conceive how a blow with
a fist could penetrate
the leather jacket and shirt which Skwatsha was wearing and cause
the wound described in the medical evidence.
Any suggestion that
such a blow could have caused the wound should, at the very least,
have been raised with the doctor who treated
Skwatsha, when he
testified. This was not done.
12.
The further submission regarding the knife, and the wound it caused,
was that reasonable doubt had to exist as to whether
the person who
struck Skwatsha a blow in the neck was carrying a knife, having
regard to the fact that neither Skwatsha nor Ozinski
saw any knife
prior to Skwatsha being stabbed. The failure of these two witnesses
to notice the knife at that moment in time
is explained in the
evidence. Ozinski testified that he was not paying particular
attention to what the assailant held in his
hands, as he was trying
to pull him away from Skwatsha and force him to the floor, and this
evidence was not challenged in cross-examination.
Skwatsha, too, was
not paying particular attention to what his attacker held in his
hands as he was, immediately prior to the
stabbing, busy fending off
blows from various people and at the same time trying to fight back.
It is quite understandable that
his attention would have been
focused elsewhere. It must again be emphasised that the Appellant
did not testify, and made no
attempt to rebut the direct evidence
about his involvement and the knife which he was carrying. The
totality of the evidence,
in my view, shows that Skwatsha was
wounded with a knife and that Appellant was the only person seen
with the knife, at the scene
of the attack.
13.
This leads to the next contention advanced on appeal namely that,
given the discrepancies between the evidence of Skwatsha,
Bushawana
and Ozinski, the court should find such evidence unreliable, and
should accordingly hold that the commission of the
offence is not
established beyond reasonable doubt. The fact that there are
discrepancies between the versions put forward by
various witnesses
does not mean that the evidence of such witnesses should be rejected
in
toto.
The
court is obliged to consider any factors which might account for
such discrepancies. The factors to be taken into account
would
include the circumstances in which the various eyewitnesses viewed
the events to which they testified and the opportunities
they had to
observe such events, the rapidity with which such events took place,
and any other factors which may account for
differences in their
testimony.
14.
In this appeal, a hostile group had forced its way into the town
hall where the meeting was being held, had approached Skwatsha
and
his fellow office bearers, hurled chairs at them and assaulted them.
The incident did not stretch out over a long period
of time. The
eyewitnesses would justifiably have had some fear as to their
personal safety. Furthermore, they had not expected
a potentially
fatal attack on one their members prior to the stabbing, and would
thus not have concentrated on making detailed
observations as to the
individual actions of members of the attacking group. It would, in
such circumstances, be understandable
that their recollections might
differ.
15.
There is in any event no material difference between the testimony
of Ozinski and Skwatsha. There are, indeed, differences
between the
evidence of Bushawana and the other two. Thus, for example, she
states that Skwatsha was seated throughout the attack
on him whereas
his own evidence, and that of Ozinski was that he was standing. It
must, however be remembered that he was seated
immediately before
the attack began. In addition the attention of Bushawana would have
been focused on what the attacking group
was doing and not on the
precise moment at which Skwatsha rose to his feet.
16.
Similarly, the fact that Bushawana did not notice that other people
were also attacking Skwatsha, and that he was endeavouring
to fight
some of them off, may be explained by reference to two factors - the
confusion which ensued when the attacking group
entered the hall,
and the fact that her attention would for obvious reasons have been
focused on Skwatsha and the man who stabbed
him with a knife, and
not on other members of the attacking group who played a more
peripheral role.
17.
The
approach which the court should adopt, in evaluating the evidence
put forward by different witnesses, is that set out by Nugent
J in
S
v van der Mevden
1999
(1) SA CCR 447 (W)
at
450
B:
"What
must be borne in mind, however, is that the conclusion which is
reached (whether it be to convict or to acquit) must
account for all
the evidence; some of the evidence might be found to be false; some
of it might be found to be unreliable; and
some of it might be found
to be only possibly false or unreliable, but none of it may simply
be ignored. "
18.
If
I accept, as I must, that the evidence of Bushawana cannot simply be
ignored, then four possibilities must be considered. The
first is
that she did not see the Appellant carrying a knife, or stabbing
Skwatsha, and that the
version of events described by her is a
deliberate fabrication on her part. Nothing in the evidence would
support such a conclusion
and it was, in any event, not put to her
that she was deliberately fabricating the evidence which she gave,
implicating the Appellant.
The second possibility is that the
person
she saw attacking Skwatsha was not the Appellant, but some other
person but this can also, on the evidence, be discounted
since
Skwatsha and Ozinski also gave evidence about the Appellant
attacking Skwatsha and the Appellant did not give evidence
in
rebuttal. The third possibility is
that the object which the
Appellant was carrying was not a knife, but something else, but this
once again raises the difficulty
that Appellant did not testify that
he was carrying some other object capable of being confused, in the
heat of the moment, with
a knife. Any finding that what he had in
his hands was an object other than a knife would thus be based on
pure speculation and
the conclusion which the court must reach, on
the evidence, has to be based on the facts presented in the evidence
and not on
speculative possibilities not raised in the evidence
(De
Wet v President Versekeringsmaatskappy Bpk
1978
(3) SA 995
(C)
at
500;
S
v Ndlovu
1987
(I) PH H37 (A)
at
68).
19.
What remains, therefore, is the conclusion that Bushawana did indeed
witness the stabbing incident as described by her, and
that the
discrepancies between her evidence and that of the other state
witnesses are capable of explanation, having regard to
the
circumstances that were present, and to the considerations
emphasized above.
20.
In my view the learned Magistrate correctly found that the Appellant
had indeed stabbed Skwatsha with a knife, in the neck.
21.
A further submission raised on behalf of Appellant was that, even if
the evidence showed that the Appellant had stabbed Skwatsha,
such
evidence could not justify a finding of attempted murder. Such a
finding could only be made if the evidence discloses that
the
Appellant had the requisite
dolus,
or
intent.
Dolus
may,
take one of two forms, as was explained in
S
v De Bruin en 'n Ander
1968
(4) SA 506
(A)
at
510
F to H:
"The
crime of murder requires that the unlawful killing should have been
committed with
dolus.
This
is a subjective state of mind. It never coincides with objective
culpa.
Broadly
speaking, and leaving aside variants not here relevant,
dolus
in
murder cases may take one of two forms.
First,
dolus
directus.
The
accused directs his will to compassing the death of a person. He
means to kill. The sole characteristic of this form of
dolus
is
actual intent to kill. Its methods are legion, but poisoning is an
example.
Second,
dolus
eventualis.
The
accused foresees the possibility, however remote, of his act
resulting in death to another, yet he persist in it, reckless
whether death ensues or not. On analysis, the multiple
characteristics of this form of
dolus
are:
1. Subjective
foresight of the possibility, however remote, of his unlawful
conduct causing death to another.
2.
Persistence in such conduct, despite such foresight.
3.
An insensitive recklessness (which has nothing in common with
culpa/
4.
The conscious taking of the risk of resultant death, not caring
whether it ensues or not.
5. the
absence of actual intent to kill. "
22.
Intent
in the form of
dolus
eventualis
is
also sufficient where the victim is not killed, as a result of the
assault perpetrated by the accused, and the charge is one
of
attempted murder
(S
v
Tissen
1979
(4) SA 293
(T) at 295 A to E).
The
courts have repeatedly emphasized that the enquiry is not what the
accused ought to have foreseen, but what the accused did
foresee.
The principle was thus stated in
S
v
Du
Preez
1972
(4) SA 584
(A) at 588 H to 589 A:
"For
the purposes of the present appeal, it suffices to emphasise that
the enquiry is not what the appellant ought to have
foreseen, but
what he did foresee; that the subjective foresight of resultant
death which constitutes
dolus
eventualis
must
be established by the State beyond reasonable doubt; and that
although, like any other factual issue, such subjective foresight
may be proved by inference, the inference must be the only one
reasonably to be drawn from the facts of the particular case.
"
23.
An inference of
dolus
eventualis
may
be drawn from the circumstances of the case and the court may, in
that regard, take into account any explanation or lack thereof
put
forward by the accused which might negative a finding of
dolus
eventualis.
This,
for example, was the approach adopted in
S
v
Nhlapo
and Another
1981
(2) SA 744
(A)
where
the court, after analysing the circumstances under which an armed
robbery took place, said the following at
751B:
In
sum, the only possible inference, in the absence of any negativing
explanation by appellants, is that they planned and executed
the
robbery with
dolus
indeterminatus
in
the sense that they foresaw the possibility that anybody involved in
the robbers' attack, or in the immediate vicinity of the
scene,
could be killed by the cross-fire. Compare the remarks of Rumpff J A
in
S
v Nkombani and Another
1963
(4) SA 877
(A) at 892A. Or, to adopt the words of Holmes JA in the
same case (at 896), the shooting of one guard by another was, as far
as the robbers were concerned, 'an envisaged incident or episode' in
the crime planned by them. "
24.
In the appeal before us the Appellant attacked Skwatsha with a
dangerous weapon and stabbed him in the neck, a few centimetres
from
the carotid artery. Any person of ordinary intelligence can hardly
contend that the potentially lethal consequences of such
a stab
wound was not foreseen by the attacker. The Appellant gave no
evidence from which the court could draw the inference that,
in his
case, he did not in fact appreciate the potentially fatal
consequences of the stab wound, or that he had intended to stab
Skwatsha in some other part of his body and had, by chance, struck
the knife blow in an unintended part of his victim's anatomy.
The
only inference reasonably to be drawn from the facts is, in my view,
that he acted with the necessary
dolus
eventualis.
I
see no basis for interfering with the finding of the trial court in
this regard.
25.
The Appellant also sought to impugn the conduct of the Magistrate in
the court below, suggesting that the Magistrate had interfered
with
the questioning of witnesses to such an extent that the Appellant
had not been afforded a fair trial. It is undoubtedly
so that a
judicial officer must remain strictly impartial and must not conduct
himself in such a manner as to create the impression
that he has
prejudged the matter
(S
v Le Grange and Others
2009
(2) SA 434
(SCA) para 21 to 23).
It
does not, follow that a presiding officer at a criminal trial is
precluded from raising questions in order to clarify any part
of the
evidence, or in order to ensure that the questioning of witnesses
remains within permissible boundaries
(S
v Basson
2007
(3) SA 582
(CC)
at
paras
35 to 36).
The
record in this matter does not, in my view, indicate that the
Magistrate conducted himself in such a way that his impartiality
could reasonably be called into question. I have studied the various
interjections from the bench appearing from the record and
do not
consider them to be excessive, unfounded or indicative of any
hostile attitude towards the Appellant, the Appellant's
legal
representatives or any other participant in the trial. On occasions
when the trial Magistrate indicated that he had a difficulty
with a
particular line of questioning, he allowed the Appellant's attorney
to fully address him on such difficulty. I am satisfied
that the
Appellant was afforded a fair trial and that the submission that the
trial Magistrate did not manifest the requisite
degree of
impartiality is not well founded.
26.
I am accordingly not persuaded that there are grounds for
interfering with the conclusions of the trial court, or for
overturning
the Appellant's conviction. In my view the appeal should
be dismissed and the conviction confirmed.
AC OOSTHUIZEN
I
agree. The appeal is dismissed and the conviction of the Appellant
on the charge of attempted murder is confirmed,
A
P BLIGNAULT