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[2023] ZAKZPHC 62
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Nxumalo v S (AR101/2022) [2023] ZAKZPHC 62 (9 June 2023)
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
Case no: AR101/2022
In the matter between:
NONHLAHLA
FORTUNATE NXUMALO
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
The following order is
made.
1.
The appeal is dismissed.
2.
The convictions and sentences
imposed are confirmed.
JUDGMENT
SMART AJ (VAHED J concurring)
[1]
This is an appeal against the conviction and sentence of the
appellant by the Mtubatuba
Regional Magistrates’ Court on one
charge of murder and two charges of assault with intent to do
grievous bodily harm.
[2] The
appellant was found guilty of murder and of two charges of assault
with intent to do grievous
harm on 6 May 2019. On 30 May 2019, the
appellant was sentenced to ten years imprisonment for murder and
three years’ imprisonment
for each of the two charges of
assault with the latter two sentences to run concurrently with the
sentence imposed for the charge
of murder. The appellant was
acquitted on charge 4. Accused 2, Mr Vulaphi Nxumalo, was found
guilty of only one of
the charges of assault and accused 3, Mr Ayanda
Gumede, was acquitted of all of the charges.
[3] The
appellant pleaded not guilty to the charges and elected to remain
silent.
[4] An
application to the court a quo by the appellant for leave to appeal
against both the convictions
and sentences was granted on 15 July
2019.
[5] The
charges against the appellant and accused 2 and 3 arise from an
incident that occurred on
1 January 2018 at the Msane area in
KwaZulu-Natal when Mr Siyabonga Madonsela was killed (Count 1) and
the three complainants,
Mr Sicelo Sibiya, Mr Mduduzi Mthethwa and Mr
Sipho Gumede, were assaulted (Counts 2, 3 and 4, respectively).
[6] In
the trial court the respondent relied on the evidence of three
witnesses, all three of whom
were the complainants in the charges of
assault. In respect of the charge of murder, the state relied
on the evidence of
a single witness, Mr Sipho Gumede.
[7] In
respect of the charges of assault with intent to do grievous bodily
harm, the respondent led
the evidence of Mr Mthethwa. Mr
Mthethwa’s evidence was that he and friends were celebrating
the commencement of the
new year at his family’s homestead.
The persons with him were Mr Siyabonga Madonsela (“the
deceased”),
Mr Sibiya, the complainant in count 2, and Mr
Gumede, the complainant in count 4. They were seated outside
when Mr Mbekiseni
Ngape arrived and demanded a cigarette from Mr
Gumede. Mr Ngape is the paternal uncle of the appellant.
Mr Gumede refused
to provide Mr Ngape with a cigarette and he was
asked to leave the premises which he did.
[8] Mr
Mthethwa and Mr Sibiya then entered the home to prepare food and,
whilst they were inside the
home, they were called outside and
advised that a fight had broken out outside the home. When they
exited the house they
found the deceased lying on the ground.
Mr Mthethwa saw the appellant and the two other accused outside his
home. The
appellant was in possession of a knife, accused 2 was
in possession of a bush knife and accused 3 had in his possession
bottles
and stones. Mr Mthethwa then noticed that Mr Gumede had
an injury on his head. Mr Mthethwa and Mr Sibiya attempted to
chase the appellant and the other two accused away. Whilst Mr
Mthethwa was attempting to remove accused 2 from the premises,
the
appellant assaulted him from behind. Initially Mr Mthethwa
thought that she was hitting him with her hands but then realised
that she was stabbing him with a knife.
[9]
Having been injured, Mr Mthethwa returned to the safety of his home
where he lost consciousness.
He was transferred to Hlabisa
Hospital and remained there for four days. According to the
report of his attending doctor,
Dr Quicke, he had sustained stab
wounds on the left side of his chest and two wounds on his back.
He was also injured on
his tongue and cheek. Mr Mthethwa’s
further evidence was that he knew the appellant as she had been his
neighbour for
about ten years.
[10] The evidence of
Mr Sicelo Sibiya was that he and Mr Mthethwa went into the house to
prepare the meat which
had been cooked, leaving the deceased and Mr
Sipho Gumede outside. When he and Mr Mthethwa were called
outside, Mr Sibiya
found the deceased injured on the ground and bent
down to assist him. He then felt someone hitting him on his
back and realised
he was being stabbed. When he turned around,
he noticed the appellant running away. Accused 2 then
approached Mr Sibiya
with a bush knife. He tried to remove the
bush knife from accused 2 but decided to flee when he was approached
by the appellant.
[11] Mr Sipho
Gumede’s evidence was that he was seated outside the house on
the veranda with the deceased.
The appellant and a male person
approached him and asked him for a cigarette. He refused the
request and was then assaulted
by the appellant with an open hand.
The deceased reprimanded the appellant who then stabbed him.
When Mr Gumede tried
to stand up to assist the deceased, accused 2
hit him with the bush knife on his head and he lost consciousness.
He was hospitalised
for a month.
[12] The evidence of
the appellant was that she and accused 2 and 3 went to the Mthethwa
homestead to participate
in the new year celebrations. She stated
that there were many people there. Whilst she was there, her
uncle, Mr Ngape, arrived
and requested that accused 2 and 3 call Mr
Mthethwa. Her evidence was that Mr Mthethwa hit accused 2 with
a bush knife.
When reprimanded, Mr Mthethwa slapped the
appellant and she fell to the ground. According to the
appellant, accused 3 was
also struck by Mr Mthethwa, a fight then
ensued and Mr Sibiya tried to stab accused 3. The appellant
pushed Mr Sibiya and
he fell onto the ground with her. She tried
removing the knife from him and someone grabbed Mr Sibiya and she
fled the scene.
Under cross examination, the appellant stated
that she did not take possession of the knife and merely held it by
the blade. Her
intention was to prevent a fight. She also stated that
she did not notice that anyone was injured.
[13] The evidence of
accused 2 was that he was asked by Mr Ngape to call Mr Mthethwa.
He did so and Mr Mthethwa
struck him on his head with a bush knife.
The appellant and accused 3 came to his assistance and Mr Mthethwa
slapped the
appellant and assaulted accused 3. Accused 2
stepped back and then Mr Mthethwa kicked him on his chest.
Accused 3 then
fled home. His evidence was that he was hit with
the flat side of the bush knife and suffered a bump to his head.
[14] According to
the evidence of accused 3, he knocked at the door of one of the
structures at the Mthethwa homestead
after having been requested to
find Mr Mthethwa. Mr Mthethwa came from behind and hit him on
his head with a bush knife.
Mr Sibiya then assaulted him and
drew a knife and tried to stab him. Mr Sibiya then tried to
stab the appellant who grabbed
the knife.
[15] None of the
accused sought medical assistance for the injuries alleged to have
been suffered by them and
nor were any charges brought against the
complainants for assault.
[16] Mr Ngape gave
evidence on behalf of the defence. He stated that he requested
accused 2 to call Mr Mthethwa
as he had agreed to transfer music for
him onto a USB stick. A fight then ensued at the Mthethwa
homestead. Mr Mthethwa
and Mr Sibiya assaulted accused 2.
Mr Ngape then advised the appellant and the other accused to leave
the premises.
[17]
The learned magistrate carefully analysed all the evidence before
her, considered all the
arguments presented and, in a well-reasoned
judgment, concluded that the appellant was guilty of the charges
referred to
above. In my view the learned magistrate cannot be
faulted for finding the appellant guilty of the crimes she was
charged with.
[18]
The learned magistrate found that the respondent’s witnesses
were honest in their
evidence and that their evidence was clear and
straightforward. She also found that the evidence of the appellant
and accused 2
and 3 was improbable, albeit that they corroborated
each other’s versions. These findings are not
inconsistent with
the evidence presented before the learned
magistrate.
[19]
When an appeal is lodged against the trial court’s findings of
fact, the appeal court
should take into account the fact that the
trial court was in a more favourable position than itself to form a
judgment because
it was,
inter
alia
,
able to observe the witnesses during their questioning and was
absorbed in the atmosphere of the trial.
[1]
It
is trite that the presiding officer who has an opportunity to assess
the evidence of a witness, with the benefit of observing
his
demeanour, is best placed to make a finding on credibility. Unless
that finding is so incredible as to be unreasonable, an
appeal court
should not interfere with such a finding.
[20] The version
proffered by the state and that of the appellant at the trial are
diametrically opposed to each
other as far as the identity of the
person or persons who killed the deceased is concerned. Mr Gumede’s
evidence was that
he saw the appellant stabbing the deceased with a
knife. The appellant on the other hand contends that she did not stab
the deceased
and did not witness the killing of the deceased or the
assaults on the complainants. The two versions in my view are
mutually
destructive.
[21]
The approach to resolving two irreconcilable, mutually destructive
factual versions is well-established in
our law
and
require no repetition.
[2]
Applying
these principles to the evidence above, i
t
is common cause that the state relied on the evidence of a single
witness. It is trite that the evidence of a single witness must
be
approached with caution and should be clear and satisfactory in all
material aspects. However, our courts have stressed the
fact that the
exercise of caution must not be allowed to displace the exercise of
common sense.
[3]
[22] Section 208 of
the Criminal Procedure Act 51 0f 1977 is relevant herein. It provides
that an accused may
be convicted of any offence on the single
evidence of any competent witness. The trial court cannot be faulted
in accepting the
evidence of Mr Gumede as satisfactory
notwithstanding that he was a single witness. The bare denial by the
appellant of the assault
is to be expected in the circumstances but
cannot be accepted as true.
[23] In my view, the
trial court was alive to the fact that it was dealing with the
evidence of a single witness
as far as the murder of the deceased was
concerned and of the applicable cautionary rule. There was no
evidence that there was
any motive for Mr Gumede to incriminate the
appellant falsely. From the evidence of the three complainants and
that of the appellant
and accused 2 and 3, the appellant was indeed
at the scene at the time of the incident. The trial court made a
finding that the
three state witnesses made a good impression in the
manner in which they clearly and directly answered the questions put
to them.
The trial court was satisfied that the complainants knew the
appellant. In my respectful view, these findings by the trial court
are beyond reproach. They cannot be faulted at all.
[24] To my mind, in
the light of the uncontroverted evidence by Mr Gumede, in respect of
the murder charge, and
the three witnesses called on behalf of the
respondent in support of the charges of assault, the evidence of the
appellant and
accused 2 and 3 and of her witness that she was not
involved in the murder of the deceased is contrived, far-fetched and
cannot
be said to be reasonably possibly true. Although the incident
happened at night, there was sufficient lighting on the property and
the complainants were positioned close enough to the appellant and
the other accused to identify them. The complainants and
the
appellant knew each other well. The complainants had a clear
vision and could identify the appellant and the other accused.
This
in my view cannot be a case of mistaken identity.
[25]
Appellant’s counsel argued that there were significant
contradictions between the evidence of Mr Gumede
and his statement
made to the police. I disagree. In S v Bruiners
[4]
it was said that contradictory versions must be considered on a
holistic basis. In order to discredit a witness on the basis of
his
affidavit, it was necessary that there had been a material deviation
by the witness from his affidavit before any negative
inference could
be drawn. In S v Govender and others
[5]
Nepgen J discussed the issue extensively. He pointed out that it is
important that it should always be borne in mind that
police
statements are, as a matter of common experience, frequently not
taken with the degree of care, accuracy and completeness
which is
desirable.
[26]
I am in agreement with the learned magistrate that the totality of
the evidence presented
against the appellant proved beyond reasonable
doubt that she was guilty of the crimes she was charged with.
[27]
Accordingly, the appellant was correctly convicted of the crimes she
was charged with.
SENTENCE
[28]
The crime of murder for which the appellant was convicted carries a
minimum sentence of
fifteen years for a first offender in terms of
s
51
of the
Criminal Law Amendment Act 105 of 1997
unless compelling
and substantial factors are present to detract from the minimum
sentence.
[29]
It was argued on behalf of the appellant that this was the first time
that the appellant
was convicted. Further submissions made on her
behalf were that she was 18 years of age at the time of the offence
and a learner
in Grade 12 and that she was the mother of a
three-year-old child. In the circumstances, argued the
appellant, the effective
term of imprisonment of ten years was
shockingly inappropriate.
[30]
The trial court took into consideration the personal circumstances of
the appellant and
found that these were substantial and compelling
circumstances sufficient to deviate from the minimum sentence of
fifteen years
and sentenced the appellant to imprisonment for a
period of ten years.
[31]
It is trite that the appropriate sentence that is to be imposed in a
particular case is
a matter that falls particularly within the
discretion of the trial court except where certain circumscribed and
defined circumstances
exist which requires the appeal court to
interfere.
[32]
In the present case the sentences imposed on the appellant are far
from inappropriate.
The sentences imposed are not different
from what this court would have imposed. Any lesser sentence would
not serve the interests
of justice.
ORDER
[33]
Accordingly, the following order is made:
1.
The appeal is
dismissed.
2
.
The convictions and sentences imposed are confirmed.
SMART AJ
VAHED J
Date
of Hearing:
06/02/23
Date
of Judgment:
06/09/23
For
Appellant:
Mr TP
Pillay
Instructed
by:
Legal
Aid South Africa
(Durban
Justice Centre)
Appellant’s
Attorneys
The
Marine Building
22
Dorothy Nyembe Street
Durban
(Ref.:
Mr TP Pillay)
(Tel:
031 – 3040100)
Email:
For
Respondent:
Ms L
Zondi
Instructed
by:
The
Director of Public Prosecutions
Respondent’s
Attorneys
5
th
Floor
Southern
Life Building
88
Joe Slovo Street
Durban…KZN
(Ref:
Ms L Zondi)
(Tel:
031 – 334 5087 / 033 – 845 4400 / 845 8700)
Email:
zondi@npa.gov.za
[1]
S
v Monyane and Others
2008
(1) SACR 543 (SCA).
[2]
Stellenbosch
Farmers' Winery Group Ltd and another v Martell & Cie SA and
others
2003
(1) SA 11
(SCA) para 5
[3]
S
v Artman and Another
1968
(3) SA 339 (SCA).
[4]
1998 (2) SACR 432
SE)
[5]
(2006 (1) SACR 322
E and see also
S
v Mafaladiso en andere
2003(1) SACR 583 SCA)