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[2024] ZAKZPHC 2
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Zwane and Another v S (AR 335/2019) [2024] ZAKZPHC 2 (24 January 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO: AR 335/2019
In the matter between:
THULANI SDISHI
ZWANE
FIRST APPELLANT
SIHLE MICHAEL
MAZIBUKO
SECOND APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
MPONTSHANA
A.J.
:
[1]
The appellants together with two co accused were indicted in the
Regional Division
of KwaZulu- Natal, Ladysmith with a charge of
murder, read with the provisions of
section 51(1)
or (2) of the
Criminal Law Amendment Act 105 of 1997
. It was alleged that on 27
September 2015 they unlawfully and intentionally killed Patrick
Mzolo, the deceased.
[2]
The record of proceedings of the 7 March 2016 reads: “10hrs SP
informs court
that the four accused were charged of murder. State
will allege that it was a premeditated murder. Accused informed of
the provisions
of
Section 51
of Act 105 of 1997 (prescribe: Murder)”
and the annexure to the charge sheet dated 07 March 2016, at page 4,
states
that the accused are guilty of the crime of Murder (read
with
Section 51(1)
or (2) of the
Criminal Law Amendment Act 105 of
1997
)”.
[3]
The appellants were legally represented throughout the trial
proceedings. T
he appellants pleaded not
guilty and raised the defence of an alibi.
Both
appellants were
convicted
as charged and sentenced to life imprisonment in terms of
section
51(1)
of the
Criminal Law Amendment Act 105 of 1997
.
[4]
This appeal proceeds against both conviction and sentence. The appeal
is opposed by
the state. The appellant sought condonation of the late
filling and extension of the period referred to in
section 309B
(1)
of the
Criminal Procedure Act, 1977
.
Despite
the length of time it took the applicant to bring the application
before this Court, the potential prejudice the applicant
stands to
suffer in the wake of the alleged violation of his right to a fair
trial if condonation is refused far outweighs the
prejudice that
would be suffered by the State if condonation is granted.
[5]
Summary of the facts is that on 27 September 2015 the deceased was
accused number
1’s boyfriend. The deceased was lured to
Mazibuko’s, the second appellant’s home at Mbulwane under
the pretence
that there was someone who was going to sell a site to
the deceased. The deceased was expected to pay cash for the said site
which
would be shared amongst Mazibuko and his co accused, but the
deceased did not have the money. When the deceased left Mazibuko’s
place there was no longer public transport. The deceased decided to
walk home accompanied by Mazibuko and his co accused. On the
way
Mazibuko and his co accused robbed the deceased of his cellphones,
assaulted him by inflicting stab wounds with knives and
threw him
into the river where he was found dead.
[6]
The first issue is whether the state failed to adequately inform
Mazibuko of the application
of the minimum sentencing regime at
relevant time commencement of the trial and the effect of the alleged
failure.
[7]
Section 51(1) of the Act, read with Part 1 of Schedule 2, provides
for the imposition
of a minimum sentence of life imprisonment on a
conviction of murder when it was planned or premeditated, unless
there are substantial
and compelling factors which justify the
imposition of a lesser sentence. In terms of section 51(2) of the
Act
, read with Part II of Schedule 2, the
minimum sentence to be imposed on a conviction of murder in respect
of a first offender is
15 years’ imprisonment unless there are
substantial and compelling circumstances.
[8]
The Mazibuko submits that the application of the provisions of the
minimum sentence
act was not clearly explained to him at the
beginning of the proceedings, the state failed in its duty to furnish
him with every
detail of the charge he was facing as a result his
right to a fair trial was severely prejudiced.
[9]
The State contends that the essence of the charge sheet which
Mazibuko was confronted
with was that Mazibuko was charged with
murder read with section 51(1) or (2) of the minimum sentence Act and
clearly stated that
the appellant was facing a charge of premeditated
murder which in law attracts the application of the provisions of the
minimum
sentence Act.
[10]
The State contended further that the Mazibuko has to show that his
right to a fair trial was factually infringed
by the fact that the
charge sheet referred to section 51(1) or (2) instead of section
51(1) only. Further that Mazibuko was legally
represented at all
times during the trial proceedings in the regional court and that
Mazibuko’s legal representative was
aware of the application of
the provisions of the minimum sentence Act, during his address on
sentence he argued that compelling
circumstances exist which will
justify the imposition of a sentence which is lesser that life
imprisonment. The state contends
further that it is not Mazibuko’s
complaint that he was not forewarned of the potential imposition of a
life sentence and
that the invocation of the provisions of the
minimum sentence Act took him by surprise in this appeal.
[11]
In
S v MT
2018
(2) SACR 592
(CC) para 40
the
court held that
It is indeed desirable
that the charge sheet refers to the relevant penal provision of the
Minimum Sentences Act. This should
not, however, be understood
as an absolute rule. Each case must be judged on its particular
facts. Where there is no
mention of the applicability of the
Minimum Sentences Act in the charge sheet or in the record of the
proceedings, a diligent examination
of the circumstances of the case
must be undertaken in order to determine whether that omission
amounts to unfairness in trial.
This is so because even though
there may be no such mention, examination of the individual
circumstances of a matter may very well
reveal sufficient indications
that the accused’s section 35(3) right to a fair trial was not
in fact infringed.
[12]
In
S
v Kekana
2019
(1) SACR 1
(SCA)
Makgoka
JA pointed out that the purpose of stipulating that a particular
charge should be read with specific minimum sentence
provisions of
the
Criminal Law Amendment Act, is
essentially two-fold (at [24]):
'First, to alert the accused of the applicability of the prescribed
minimum sentence. Second, to
afford the accused an opportunity to
place facts before the court on which a deviation from the prescribed
sentence would be justified,
nothing more’.
[13]
The charge sheet stipulates that the charge is to be read with
section 51(1)
or (2) of the
Criminal Law Amendment Act, it
is not
clear as to which of the two subsections of
section 51
is applicable.
It does not appear on the record where it was explained to Mazibuko
which of the two subsection of
section 51
is applicable. This
ambiguity and lack of explanation infringes Mazibuko’s right to
a fair trial which entails being informed
with sufficient
particularity of the charges labeled against him.
However
it is clear and unambiguous from the record that the Mazibuko pleaded
not guilty to a charge of murder.
[14]
The second issue is
whether the trial
court was correct in accepting the evidence of Mr Thulani Ndlovu
(accused 2), an accomplice who testified for
the state as a
section
204
witness
.
[15]
In
S
v Hlapezula and others [1965] 2 all SA 9 (a) the court said that it
is well settled that the testimony of an accomplice requires
particular scrutiny because of the cumulative effect of the following
factors. First, he is a self-confessed criminal. Second,
various
considerations may lead him falsely to implicate the accused, for
example, a desire to shield a culprit or, particularly
where he has
not been sentenced, the hope of clemency. Third, by reason of his
inside knowledge, he has a deceptive facility for
convincing
description, his only fiction being the substitution of the accused
for the culprit. Accordingly, even where
section 257
of the Code has
been satisfied, there has grown up a cautionary rule of practice
requiring (
a
)
recognition by the trial Court of the foregoing dangers, and (
b
)
the safeguard of some factor reducing the risk of a wrong conviction,
such as corroboration implicating the accused in the commission
of
the offence, or the absence of gainsaying evidence from him, or his
mendacity as a witness, or the implication by the accomplice
of
someone near and dear to him; see in particular
R.
v.
Ncanana
,
1948 (4) S.A. 399
(A.D.) at pp. 405-6;
R.
v.
Gumede
,
1949 (3) S.A. 749
(A.D.) at p. 758;
R.
v.
Nqamtweni
and Another
,
1959 (1) S.A. 894
(A.D.) at pp. 897G-898D. Satisfaction of the
cautionary rule does not necessarily warrant a conviction, for the
ultimate requirement
is proof beyond reasonable doubt, and this
depends upon an appraisal of all the evidence and the degree of the
safeguard aforementioned.
[16]
The evidence of
Thulani
Ndlovu, the accomplice witness is the only evidence which describes
in detail how the assault which caused the demise of
the deceased
occurred. The evidence indicates that Thulani Ndlovu was not only
present but he also participated in the commission
of the offense. He
stated that the appellants and the deceased were walking behind him
and the first accused was in the front.
He testified that while on
the way the deceased’s house and after crossing a river there
was commotion behind him, Thulani
Ndlovu, when he turned and looked
back he saw appellant grabbing the deceased by his neck forcing the
deceased to fall.
[17]
Thulani Ndlovu stated further that Mazibuko searched the deceased,
took the deceased cellphones
and bank cards from the pockets of the
deceased’s pants and demanded for personal identity numbers for
the said bank cards
from the deceased. That the deceased refused to
give the personal identity numbers (PIN) of his, the deceased’s
bank cards
and the first and second appellants continued to assault
the deceased by stabbing him with knives.
[18]
Thulani Ndlovu stated further that at some stage the second appellant
threw a knife to Thulani Ndlovu and invited him, Thulani
Ndlovu to
also participate in the assault and that he, Thulani Ndlovu did
accept the said knife and also stabbed the deceased on
the arms. He
Thulani Ndlovu told the deceased that the deceased should cooperate
by telling the Mazibuko and his co accused his,
the deceased’s
personal identity number (PIN) for his bank cards after otherwise
they are going to kill him, the deceased.
The deceased eventually
blurted his PIN out.
[19]
Thulani Ndlovu stated further that Mazibuko then cautioned that the
deceased knew him, Mazibuko,
therefore he the deceased should be
killed otherwise the deceased would report Mazibuko to the police.
Mazibuko stabbed the deceased
on the chest once with a knife whilst
Mazibuko’s co accused stabbed the deceased on the chest twice
with a knife. Mazibuko
and his co accused thereafter asked him,
Thulani Ndlovu, to help drag the deceased and throw him, the deceased
into a river. Thereafter
they, Thulani Ndlovu, Mazibuko his co
accused proceeded to the deceased’s flat to look for money.
[20]
The evidence of the police officers who attended the scene of the
crime corroborated Thulani
Ndlovu’s evidence in that they did
observe that there were marks on the ground showing that something
had been dragged from
the path towards the river where the body of
the deceased was found.
[21]
The pictures taken by the police which forms part of the exhibits
which were admitted by consent
in terms of
section 220
of the
Criminal Procedure Act contain
three holes on the deceased chest
which is consistent with the evidence of Thulani Ndlovu.
[22]
The affidavit of Dr Ntshangase and the post-mortem report which was
admitted by consent in terms
of
section 220
of the
Criminal Procedure
Act, states
the cause of death was thoracic breathing as a result of
the deceased having been stabbed on the chest.
[23]
However the state did not rely on common purpose.
In
relation to the involvement of Mazibuko and his co accused in the
incident, the court a quo considered Thulani Ndlovu’s
evidence
and found that Thulani Ndlovu’s evidence was corroborated by
forensic evidence and the cellphone reports which were
admitted in
terms of
section 220
of the CPA. Further that the state had made a
strong
prima
facie
case
that Mazibuko and his co accused were not only present at the scene
where the deceased was severely assaulted, but that they
actively
participated in that assault by stabbing the deceased on the chest
with knives.
[24]
The learned regional magistrate in his reasons for convicting
Mazibuko and his co accused of
murder being aware of the fact that
common purpose was never averred either in the charge sheet or proved
in evidence took into
consideration the fact that there is
overwhelming evidence implicating Mazibuko and his co accused which
remains uncontested. It
was impermissible for the regional magistrate
to have invoked the principle of common purpose as a legal basis to
convict Mazibuko
and his co accused on a count of murder as this
never formed part of the state’s case.
[25]
The approach adopted by the regional magistrate, that of relying on
common purpose which was only mentioned at the end
of the trial is
inimical to the spirit and purport of
s 35(3)(
a
) of the
Constitution of the Republic of South Africa, Act 108 of 1996 (the
Constitution) under the heading ‘Arrested, detained
and accused
persons’. The requirement embodied in s 35(3) is not merely
formal but substantive. It goes to the very heart
of what a fair
trial is. It requires the state to furnish every accused with
sufficient details to put him or her in a position
where he or she
understands what the actual charge is which he or she is facing. In
the language of s 35(3)(
a
), this is intended to enable
such an accused person to answer and defend himself in the ensuing
trial. Its main purpose is to banish
any trial by ambush.
Msimango
v The State
(698/2017)
[2017] ZASCA 181
(01 December 2017).
Therefore the conviction on the count of murder cannot stand.
[26]
Mazibuko and his co accused chose not to take the court into their
confidence by not stating
their version of events. The evidence
accumulatively indicates that Mazibuko and his co accused were
present at the scene and they
participated in the assault that
resulted in the death of the deceased therefore the conviction itself
cannot is justifiable.
It
is a well-established principle that a trial court's decision must be
based on the totality of evidence available to the court.
[27]
Last issue is whether the sentence is so hush and inappropriate such
that it induces shock. It
is not necessary to deal with this issue in
details because of the conclusion that the application of the minimum
sentence was
not explained at the commencement of the trial and
ambiguity on the charge sheet. The result of this conclusion is that
Mazibuko
and his co accused should have been convicted of attempted
murder therefore the sentence of life imprisonment automatically
falls
to be replaced by an appropriate sentence.
[28]
Although the concept of a fair
trial is a cornerstone of our criminal law jurisprudence, not every
minor irregularity vitiates the
right to a fair trial and nullifies
the entire proceedings. In this case t
he
ambiguity on the charge sheet with regarding which subsection of the
section 51 is relied upon by the state and the lack of explanation
with regard to the application of the minimum sentence the appellants
should addressed by excluding reference to
section 51
of the
Criminal
Law Amendment Act and
changing the conviction from that of “convicted
as charged” to a conviction of attempted murder.
[29]
For these reasons I make the following order
(a)
Condonation is granted
(b)
The appeal against conviction to the charge of murder read with
section 51(1) or (2) of the Criminal Law Amendment Act upheld
(c)
The conviction of murder is set aside and replace with a conviction
of attempted murder
(d)
The appeal against sentence of life imprisonment upheld
(e) The sentence of life
imprisonment is set aside and replaced with a sentence of 12 years
imprisonment
antedated
to 25 June 2018
.
MPONTSHANA
AJ
I
agree and it is so ordered.
P
C BEZUIDENHOUT J
JUDGMENT
RESERVED:
8
SEPTEMBER 2023
JUDGMENT
HANDED DOWN:
24
JANUARY 2024
COUNSEL
FOR SECOND APPELLANT:
L
BARNARD
Tel:
083 225 8122
COUNSEL
FOR RESPONDENT:
N
F MLOTSHWA
DPP
Pietermaritzburg
nmlotshwa@npa.gov.za
Tel:
033 845 4400