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[2012] ZASCA 85
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Sithole v S (868/2011) [2012] ZASCA 85 (31 May 2012)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 868/2011
Not Reportable
In the matter between
JABULANI KENNY SITHOLE
..........................................................................
Appellant
and
THE STATE
…..............................................................................................
Respondent
Neutral citation:
Sithole v S
(868/11)
[2011] ZASCA 85
(31 May 2012)
Coram: MTHIYANE DP,
KROON and SOUTHWOOD AJJA
Heard: 17 May 2012
Delivered: 31 May 2012
Summary:
In
deciding whether to convict or acquit the court must take all the
evidence into account – if accused’s version improbable
court cannot convict unless it can find that it is so improbable that
it cannot be reasonably possibly true.
___________________________________________________________________
ORDER
___________________________________________________________________
On Appeal from:
North
Gauteng High Court (Pretoria) (Hartzenberg J and Mabuse AJ sitting as
court of appeal) dismissing the appellant’s appeal
against
convictions by the Nelspruit Regional Court of assault with intent to
do grievous bodily harm and murder.
Appeal upheld and order
of the court below set aside and replaced with following order:
‘
The appeal is
upheld and the convictions and sentences are set aside.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
SOUTHWOOD AJA
(MTHIYANE DP AND KROON AJA concurring)
[1] On 21 September 2005
the appellant was found guilty in the Nelspruit regional court of
assault, assault with intent to do grievous
bodily harm and murder
and on 22 September 2005 he was sentenced to 3 months imprisonment
for the assault, 6 months imprisonment
for the assault with intent to
do grievous bodily harm and 15 years imprisonment for the murder. The
regional court ordered that
all the sentences run concurrently. On 17
August 2009 the appellant’s appeal against the convictions of
assault with intent
to do grievous bodily harm and murder was
dismissed by the Pretoria High Court which immediately granted leave
to appeal to this
court.
[2] The relevant
convictions were based on the evidence of a single witness, Rose
Nkosi, and the medico-legal post-mortem examination
report which was
handed in by agreement. The principal finding in the report was that
the deceased, Pinini Lucas Zwane, sustained
a single stab wound which
penetrated his chest close to the sternum, between the third and
fourth ribs, and caused his death. Only
the appellant testified in
his defence.
[3] The incident took
place at night at a village in the Mganduzweni Trust where the
appellant’s and the deceased’s
girlfriends, respectively
Doreen Vilakazi and Rose Nkosi, resided. It was not in dispute that
at about 18:00 on 14 August 2004
the appellant arrived to visit
Doreen and their five year old child and that when he saw Nico, one
of Doreen’s relatives,
at the gate of her home the appellant
wrongly assumed that Nico was courting Doreen and flew into a rage
and chased him away from
the house. There is no evidence that at that
stage the appellant was armed with a knife. It is also not in dispute
that when the
appellant returned to the house, angry words were
exchanged between the appellant and Doreen and that he slapped her
more than
once and chased her when she ran away. It is also not in
dispute that Doreen ran to Rose Nkosi’s house where she took
refuge
until she and the appellant were ordered to leave by Rose’s
mother and that they both slept at appellant’s aunt’s
house and that neither was aware of the other’s presence there.
The acts involving Rose Nkosi (resulting in the conviction
of assault
with intent to do grievous bodily harm) and the deceased (resulting
in the conviction of murder) took place after the
appellant left Rose
Nkosi’s house.
[4] Although the
appellant admitted that he stabbed the deceased there are two
mutually destructive versions as to how this happened.
It is common
cause that Rose Nkosi sustained a stab wound in the forearm when she
attempted to separate the appellant and the deceased
while they were
wrestling with each other.
[5] Rose Nkosi testified
that she and the deceased were sitting in the deceased’s motor
vehicle which was standing in front
of her house when the appellant
approached the vehicle in the company of two ‘boys’
whom she did not recognize. The appellant approached her
side of the vehicle and apparently wanted to open the door but she
locked
it. The appellant then walked around to the driver’s
door and, according to Rose, the appellant asked the deceased if he,
the deceased, wanted to talk and the deceased got out of the vehicle.
Without any discussion or provocation the appellant produced
an Okapi
knife and stabbed the deceased. Rose did not see where the appellant
got the knife from and where he stabbed the deceased.
All she saw was
the blood on his chest. Rose then got out of the vehicle and tried to
separate the appellant and the deceased.
In the process Rose was
stabbed on the left forearm. She could not explain how this happened.
She and the deceased then ran away
and hid next to the pump at the
river where the deceased collapsed. He died shortly afterwards.
[6] The appellant
testified that after his altercation with Doreen Vilakazi he went to
ask Rose for payment of the purchase price
of some perfume which he
had sold her. Rose said to him that he had turned against her because
he had failed to catch the person
he was chasing and told him that
the perfume was useless. The appellant replied that if that was so
she should return the perfume
to him and Rose started shouting at
him. She told him that Pigza (the deceased) is the only person who
could control him. When
Rose shouted at him, the appellant left. On
his way back to Doreen’s house a car stopped next to him. The
deceased was driving
and Rose was sitting next to him. Rose pointed
at the appellant and said ‘this is the man’ and said
something insulting
to him. The appellant replied that he would not
speak to her as she is a woman and only the deceased would understand
him because
he is a man. The deceased then called him over to the
car. When the appellant reached the car, the deceased, without saying
a word
punched him and they started to wrestle and both fell down.
They were still wrestling when the appellant managed to get to his
feet. He heard Rose say ‘Pigza catch’
and
she tossed a knife to the deceased. The knife fell between the
appellant and the deceased and the appellant grabbed it before
the
deceased could and they wrestled with each other for possession of
the knife. While they were wrestling Rose tried to separate
them. She
came between them and he heard her cry out. He did not stab her
deliberately and he could not say whether he stabbed
her by accident
or not. He agreed that he stabbed the deceased – he could not
say how this happened or how many times –
but this happened
while they were standing upright, struggling for possession of the
knife. He did not see where he stabbed the
deceased. After the
incident he dropped the knife and he does not know what happened to
it. The appellant denied that he was the
aggressor and said that he
was defending himself. He did not stab the deceased deliberately.
[7] The regional court
found that Rose Nkosi was a credible witness and that her evidence
was corroborated by Doreen Vilakazi’s
evidence and,
accordingly, that her evidence could be accepted. The regional court
also found that Rose’s evidence was clear,
straightforward and
logical and that there was not a single improbability in her
evidence. The regional court did not find that
the appellant had
contradicted himself or had deviated from his version but found that
it could not believe a word of the appellant’s
testimony. This
was because of the improbabilities in the appellant’s evidence:
the timing of the appellant’s demand
for payment; Rose Nkosi
throwing a knife to the deceased while he was fighting with the
appellant; the appellant’s ability
to pick up the knife; the
appellant’s inability to remember when he stabbed the deceased
and the appellant’s inability
to explain how Rose was stabbed.
The regional court therefore found that the appellant had not acted
in self-defence and had deliberately
stabbed Rose Nkosi and the
deceased.
[8]
The State bears the
onus
of
establishing the guilt of an accused beyond reasonable doubt and he
is entitled to be acquitted if there is a reasonable doubt
that he
might be innocent.
1
The
onus
has
to be discharged upon a consideration of all the evidence. A court
does not look at the evidence implicating the accused in
isolation to
determine whether there is proof beyond reasonable doubt nor does it
look at the exculpatory evidence in isolation
to determine whether it
is reasonably possible that it might be true. The correct approach is
set out in the following passage
from
Mosephi
and others v R
LAC
(1980 – 1984) 57 at 59 F-H:
‘
The question
for determination is whether, in the light of all the evidence
adduced at the trial, the guilt of the appellants was
established
beyond reasonable doubt. The breaking down of a body of evidence into
its component parts is obviously a useful guide
to a proper
understanding and evaluation of it. But, in doing so, one must guard
against a tendency to focus too intently upon
the separate and
individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood for the trees’.
2
In
weighing the evidence of a single State witness a court is required
to consider its merits and demerits, decide whether it is
trustworthy
and whether, despite any shortcomings in the evidence, it is
satisfied that the truth had been told.
3
It
must state its reasons for preferring the evidence of the State
witness to that of the accused
4
so
that they can be considered in the light of the record. In applying
the onus the court must also, where the accused’s version
is
said to be improbable, only convict where it can pertinently find
that the accused’s version is so improbable that it
cannot be
reasonably possibly true.
5
[9] With regard to the
conviction of assault with intent to do grievous bodily harm it is
clear that the regional court erred in
finding that the accused
deliberately stabbed Rose ‘to get her away from him so that he
can direct his aggression at the
deceased again’. There is no
evidence that the appellant deliberately stabbed Rose. Neither Rose
nor the appellant could
explain how she was injured and it is common
cause that this happened while the deceased and the appellant were
wrestling with
each other and Rose attempted to separate them. The
regional court introduced the finding by saying ‘we believe’
but did not refer to the facts. The evidence does not
support their belief or the finding and the appellant’s appeal
against
this conviction must succeed.
[10] As far as the
conviction of murder is concerned the regional court’s
reasoning cannot be sustained.
(a) It clearly erred in
finding that Rose Nkosi’s evidence was corroborated by that of
Doreen Vilakazi. Doreen was not a witness
to the events about which
Rose Nkosi testified. She therefore could not corroborate Rose’s
evidence.
(b) It clearly erred in
finding that there was not a single improbability in Rose’s
evidence:
It is highly improbable
that the appellant, who had a good friendship with Rose, and, up to
this time had shown no hostility to
Rose, would suddenly, without
provocation – or any reason at all – decide to attack
her.
It is highly improbable
that the appellant who did not know the deceased and had not been
provoked by the deceased would suddenly
decide to stab him –
obviously with the intention of killing him;
It is highly improbable
that if the appellant had just fatally stabbed the deceased the
appellant and the deceased would have
continued to wrestle with each
other;
It is highly improbable
that if Rose had such a restricted view of the appellant and the
deceased she would have been able to
identify the knife used by the
appellant as an Okapi;
It is highly improbable
that Rose would have been able to identify the knife as an Okapi if
she had not had it in her possession;
It is highly improbable
that if the appellant had decided to kill the deceased by stabbing
him that the appellant would have inflicted
only one stab wound;
It is highly improbable
that the appellant would have stabbed the windscreen of the
deceased’s car.
(c) It erred in finding
that Rose’s evidence was clear, logical and straightforward.
Apart from Rose’s ability to identify
the knife as an Okapi,
Rose contradicted herself about where the appellant got the knife. At
first she testified unambiguously
that she did not know. In
cross-examination she testified, equally unambiguously, that she saw
the appellant drawing the knife
from his right hand side before he
stabbed the deceased.
(d) It erred in finding
that not one word of the appellant’s evidence was credible and
could be believed. Most of the State’s
evidence about the
attack on Doreen Vilakazi was not in dispute. The appellant admitted
all the essential facts: i.e. that he had
gone to visit Doreen at
about 18:00 on the night in question; that he had seen Nico at the
gate to Doreen’s house; that he
had chased Nico down to the
river; that he had returned to the house and had an altercation with
Doreen; that he was angry (because
he had wrongly assumed that Nico
was paying court to Doreen) and had struck Doreen; that he had chased
Doreen when she ran to Rose’s
house; that when Doreen got to
Rose’s house and closed the door he had kicked the door; that
when Rose’s mother asked
him to leave he had done so without
protest; that he had kicked his child when he set off in pursuit of
Rose and that he had slept
at his aunt’s house. The court
obviously accepted that the appellant had slapped Doreen and not
punched her repeatedly, as
she testified, and found the appellant
guilty of common assault. The court clearly accepted the appellant’s
evidence on this
issue and contradicted itself about his credibility.
(e) It erred in finding
that the appellant’s aggression runs like a thread through the
evidence. After the events involving
Doreen the essential facts are
all disputed, particularly that the appellant was the aggressor.
(f) It erred in first
accepting Rose’s evidence and then finding that the appellant’s
evidence could not be believed
because of certain improbabilities,
without assessing it in the light of all the evidence as a whole.
(g)
Finally, and most importantly, it erred in failing to find
pertinently that because of the improbabilities in the appellant’s
version it was so improbable that it cannot be reasonably possibly
true.
6
[11] Although the
appellant’s version was also improbable the following factors
are consistent with the appellant’s
version:
(1) The fact that the two
men wrestled with each other is consistent with them fighting for
possession of the knife;
(2) The fact that neither
the appellant nor Rose could explain how Rose was injured shows that
there was great confusion –
once again consistent with the two
men fighting for possession of the knife;
(3) The fact that Rose
could identify the knife as an Okapi shows that she had possession of
the knife – consistent with the
appellant’s evidence that
she threw the knife to the deceased;
(4) The fact that there
is no evidence to show that it was not possible for the deceased to
have been stabbed in the chest while
the two men were fighting for
possession of the knife. This was a crucial factor which had to be
investigated and a pertinent finding
made before the appellant’s
evidence could be rejected as not reasonably possibly true.
[12] In view of these
factors the court’s rejection of the appellant’s version
cannot be supported and it cannot be
found that his version was not
reasonably possibly true. On the appellant’s version he was
attempting to keep the deceased
from obtaining possession of the
knife and stabbing him and he, the appellant, had no intention of
stabbing the deceased. He was
therefore not guilty of murder or any
other offence.
[13] It is significant
that the tale appears to have grown in the telling. Rose added detail
as she testified (for example where
the appellant got the knife from)
and some of her evidence makes no sense at all. The presence of the
two ‘boys’
and the appellant stabbing
the windscreen of the vehicle was never explained. Doreen’s
evidence about the appellant assaulting
the child is clearly an
embellishment. If she had witnessed this serious assault on her child
she would have told the police and
the appellant would have been
prosecuted for that assault as well.
[14] In the premises the
appeal is upheld and the order of the court below is set aside and
replaced with the following:
‘
The appeal is
upheld and the conviction and sentences are set aside.’
________________________
B R SOUTHWOOD
ACTING JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANTS: V Z Nel
Instructed by: Justice
Centre, Nelspruit;
Justice Centre,
Bloemfontein.
FOR RESPONDENTS: L
Pienaar
Instructed by: Director
of Public Prosecutions, Pretoria;
Director of Public
Prosecutions, Bloemfontein.
1
R
v Difford
1937 AD 370
at 373, 383;
S v Van der Meyden
1999 (1) SACR 447
(W) at 450a;
S v Van Aswegen
2001 (2) SACR
97
(SCA) para 8.
2
Quoted
with approval in S v Hadebe & others
1998 (1) SACR 422
(SCA)
at 426f – h;
S v Mbuli
2003 (1) SACR 97
(SCA) para 57.
3
S
v Sauls
1981 (3) SA 172
(A) at 180C–G
4
S
v Guess
1976 (4) SA 715
(A) at 718F–719 A.
5
S
v Shackell
2001 (2) SACR 185
(SCA) para [30] 194g – i.
6
S
v Shackell
2001 (2) SARC 185 (SCA) para 30.