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[2024] ZAKZPHC 25
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Nkwanyana v S (AR50/2023) [2024] ZAKZPHC 25 (25 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR50/2023
In
the matter between:
MTHOKOZISI
MCAZELENI NKWANYANA
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
On
appeal from:
Vryheid Regional Court (Magistrate Mhlongo sitting
as court of first instance):
1.
The appellant’s appeal against his conviction and sentence
is
dismissed.
JUDGMENT
E
Bezuidenhout J (Gwagwa AJ concurring):
Introduction
[1]
The appellant was convicted on
30 August 2022 of the murder of Mrs Buyeleni Zwane (the
deceased), a
78-year-old woman, in the Vryheid Regional Court. The appellant was
sentenced to life imprisonment on the same day.
The appellant appears
before us by virtue of the provisions of section 309(1)
(a)
of
the
Criminal Procedure Act 51 of 1977
, which affords him an automatic
right of appeal against both conviction and sentence.
Facts
of the case and evidence
[2]
The State led the evidence of three witnesses, whereas the appellant
testified in
his defence and called no witnesses. The facts of the
matter on the State’s version are these. On the evening in
question,
at around 19h00, Ms Nondumiso Nkwanyana (Nondumiso), heard
the appellant, whom she described as her brother, quarrelling with
her
elderly neighbour, the deceased, about the appellant taking
oranges from her yard. Nondumiso went outside and called the
appellant’s
name, trying to calm him down and told him to go
and sleep. He was very aggressive. He uttered the words ‘I am
going to kill
you, I am not a Dube, local person, I am from Emondlo,
I am going to kill you’. These words were directed at the
deceased.
The appellant then left.
[3]
Nondumiso returned home and later went to bed. She heard the
appellant calling out
to her, saying ‘sister I am going to kill
this dog’. She went outside and noticed that the appellant had
a knife in
his hand. He jumped over the deceased’s gate and
went towards the deceased’s home. Nondumiso followed him and
jumped
over the gate. She saw that the appellant had already grabbed
hold of the deceased and lifted the knife towards her. She tried to
grab the appellant by his vest or T-shirt and begged him not do it,
but the appellant continued grabbing hold of the deceased.
He then
pushed the deceased down and stabbed her in the back. He also turned
her over and stabbed her in the front of her body.
Nondumiso kept
pulling him by his vest and pleaded with him not to do it, but to no
avail. The appellant insulted her and she became
worried that he
might do the same to her. She then ran away, crying, and proceeded
towards his homestead. She met up with her mother,
Mrs Zanele
Nkwanyana (Zanele) at the deceased’s gate. Nondumiso proceeded
to the Mothe homestead where the appellant was
staying and reported
to her maternal aunts that the appellant had stabbed the deceased.
[4]
A while later, the appellant arrived at the homestead. He was
confronted by Nondumiso’s
brother, Sifiso, but he proceeded to
assault Sifiso. Some boys from the area arrived, grabbed the
appellant and tied him up with
a rope. The appellant was then
assaulted by some of his relatives. Subsequently, the police arrived.
[5]
Zanele testified that the incident in question took place before
19h00. She stated
that Nondumiso reported to her that the appellant
was quarrelling with the deceased. She went outside and told the
appellant to
go to sleep. He then proceeded to the Mothe homestead.
The appellant is her brother’s son. A while later, she heard
the voice
of the appellant saying ‘I am now going to stab him’.
It is perhaps an interpretation error as she clearly understood
it to
mean the deceased. Her daughter, Nondumiso, went outside while she
was looking for her shoes. She subsequently followed Nondumiso
to the
deceased’s homestead. As she was about to enter the deceased’s
homestead, Nondumiso came out, crying. Zanele
found the appellant
stabbing the deceased. She tried to reprimand the appellant by
shouting his name, but he ignored her. She heard
a gunshot being
fired from the road, where people had been gathering. She left the
deceased’s homestead and proceeded to
the Mothe homestead,
whereafter the appellant arrived. She further testified that four
boys emerged, who then tied the appellant’s
hands and feet. The
police arrived a while later.
[6]
Both Nondumiso and Zanele were cross-examined at length, and much was
made of insignificant
contradictions about whether the appellant was
wearing a vest or a T-shirt and/or a coat and what the colour of his
shorts was.
In our view, nothing turns on these immaterial
contradictions. It was put to Zanele that she and members of her
family were fabricating
the case against the appellant and that it
was furthermore too dark to make a reliable identification. It was
further put to the
witnesses that the appellant would deny that he
was involved. Both Nondumiso and Zanele were adamant that they saw
the appellant
stabbing the deceased.
[7]
The State also called Constable NK Mavimbela. He arrived on the scene
and found the
appellant tied up. The majority of his evidence was
inadmissible.
[1]
The prosecutor,
Mr Sibiya, proceeded to lead the inadmissible evidence without
missing a beat. The magistrate, Ms Mhlongo, in turn
allowed the
prosecutor to lead this evidence without batting an eyelid. Counsel
for the appellant during the trial, Mr Nkosi, did
not object to the
clearly inadmissible evidence when it was being led. Despite its
inadmissibility, the magistrate referred to
the evidence in her
judgment. Fortunately for the State, she placed no apparent reliance
on it when convicting the appellant.
[8]
The State handed in a number of documents, such as the post-mortem
report and a photo
album. We will return to the post-mortem report in
due course.
[9]
At the commencement of the trial, the appellant, through his counsel,
gave a brief
plea explanation, setting out the following basis of his
defence. The appellant was at home at around 22h00 that evening, at
the
Mothe homestead. He was watching television when he heard that a
person had been found dead at one of his neighbours. The appellant’s
aunt, Ms Tholakele Nkwanyana, arrived with a group of men and asked
him to come out, which he did. He was grabbed by these men
and
assaulted. They handcuffed his hands and feet and wanted to fetch
petrol and matches to set him alight. The police then arrived
and he
was arrested. The appellant knew nothing of the deceased’s
murder.
[10]
The appellant testified that he was at home around 19h00. He only
learnt about the incident at
22h00. He further disputed that he was
caught by two people, and stated that he was caught by four people.
He testified that he
was assaulted by these men, his head was hit
against the wall, he was assaulted with fists, and sustained injuries
to his face
and teeth. He stated that he last saw the deceased two
weeks before the incident. This was never put to either Nondumiso or
Zanele.
He testified that he and the deceased had a good
relationship, but that he, Zanele and Nondumiso were not on good
terms. During
his cross-examination, he indicated that the deceased
normally called him to clean her yard or to help in the yard. The
appellant
conceded that it was never put to the State witnesses that
he was not on good terms with Zanele and Nondumiso. The appellant
mentioned
the names of four cousins in whose company he was on the
evening in question. None of them were called to testify and confirm
his
alibi. During extensive questioning by the magistrate, it emerged
that the appellant only arrived at the Mothe homestead at around
21h30 that evening. He did not explain where he was before he got
there. None of this was put to the witnesses during cross-examination
nor was it mentioned by the appellant during his evidence in chief.
Analyses
and legal principles
[11]
The main issue raised by the appellant in the heads of argument filed
on his behalf related to
the identification or identity of the person
who stabbed the deceased. Reference was made to
S
v Miggel
[2]
in support of the submission that it is always necessary for a court
to approach the evidence of identification with caution. However
honest and reliable a witness may seem, his or her evidence about the
identity of an accused may be unreliable, which justifies
the
existence of a cautionary rule applicable to evidence of identity.
[12]
It was submitted on behalf of the State that the two identifying
witnesses are family members
of the appellant who know him very well
and have known him for a number of years. This was not disputed by
the appellant. Both
witnesses were grabbing at the appellant when he
was stabbing the deceased. The appellant had furthermore told
Nondumiso that he
was going to stab the deceased. It was also
submitted that there would have been sufficient ambient light for the
witnesses to
see the appellant’s face. We were referred to
R
v Dladla
[3]
where it was found that:
‘
One
of the factors which in our view is of the greatest importance in a
case of identification, is the witness’ previous knowledge
of
the person sought to be identified. If the witness knows the person
well or has seen him frequently before, the probability
that his
identification will be accurate is substantially increased . . . What
is important is to test the degree of previous knowledge
and the
opportunity for a correct identification, having regard to the
circumstances in which it was made.’
It
was also submitted that although the appellant raised an alibi, he
failed to call such alibi to verify and corroborate his version.
[13]
The magistrate analysed the evidence and came to the conclusion that
the eye witnesses corroborated
each other when they said that they
saw the appellant’s face. The appellant was furthermore a
person well known to the witnesses.
Both Nondumiso and Zanele could
furthermore recognise his voice without seeing him. They were both in
close contact with the appellant.
Nondumiso testified that she tried
to grab the appellant by his vest and begged him to not do it, but
the appellant continued grabbing
hold of the deceased and then pushed
her down and stabbed her in the back. This was also corroborated by
Zanele, who testified
that when she was at the scene, she reprimanded
the appellant by calling out his name. The magistrate also, quite
rightly, took
into account that the appellant gave a different
version when he testified in court to that contained in his plea
explanation.
[14]
Save for our concerns about the magistrate’s lack of
understanding of the inadmissible
evidence of Constable Mavimbela, we
agree with the findings by the magistrate that the evidence of the
two eye witnesses was clear
and reliable and that there was no reason
not to accept the evidence of the State witnesses. They knew the
appellant well and had
stayed with him for a long time.
[15]
Ms Hulley, counsel for the appellate, properly and correctly
indicated at the commencement of
the hearing before us that she had
no further submissions to make and would rather concentrate on the
issue of sentence. We are
accordingly of the view that the magistrate
correctly convicted the appellant based on the admissible evidence
before the trial
court. If the two eyewitnesses falsely implicated
the appellant, it would mean by implication that they are shielding
the true
culprit who violently attacked and killed their neighbour in
front of them, which in our view is highly unlikely and improbable.
The state clearly proved its case beyond a reasonable doubt.
[16]
As far as sentence is concerned, the appellant was sentenced to life
imprisonment in accordance
with the provisions of section 51 of the
Criminal Law Amendment Act 105 of 1997 (the CLAA), the State alleging
and proving that
it was premeditated murder. In terms of section
51(3)
(a)
of the CLAA, a court is obliged to impose the
prescribed minimum sentence unless it finds that ‘substantial
and compelling
circumstances exist which justify the imposition of a
lesser sentence’.
[17]
The appellant was 20 years old at the time he committed the offence
and was also a first offender.
He had one child who was residing at
his family homestead. The appellant was still schooling, busy with
grade 12, when he was arrested.
It further appears from the record
that he spent just over three years in custody, awaiting trial. He
was arrested on 7 July 2019
and was convicted on 30 August 2022.
There was initially a delay to the start of the trial as the
appellant had been sent for mental
observation. Ms Hulley submitted
that the magistrate failed to find that the combination of these
factors established substantial
and compelling circumstances,
justifying a deviation from the prescribed minimum sentences.
[18]
As far as the seriousness of the offence is concerned, one only has
to glance at the post-mortem
report to form a picture of the degree
of violence perpetrated by the appellant on the deceased. She
sustained multiple stab wounds
to her chest, back, arm and face. It
is clear that it was a brutal, vicious attack on a woman almost 60
years older than the appellant,
which in a time of constant public
awareness campaigns about violence against woman, is inexcusable.
[19]
It has been held in
S
v Malgas
[4]
that a court must weigh all the traditional considerations and should
depart from the prescribed minimum sentence when it will
be unjust to
impose it.
[20]
Counsel for the State, Mr D Naidoo, submitted in his heads of
argument that a court of appeal
does not have an unfettered
discretion to interfere with the sentence imposed by the trial
court.
[5]
With reference to
S
v Van de Venter
[6]
and
S v
Truyens,
[7]
we were reminded of the instances where interference would be
warranted, such as a misdirection or where the court failed to
exercise
its discretion judicially.
[21]
It is clear from the record that the magistrate failed to take the
period that the appellant
spent in custody awaiting trial into
consideration. She does not mention it at all, despite the fact that
the appellant’s
evidence was led in this regard. To her credit,
we must add that the appellant’s counsel did not address her on
this aspect
and did not refer her to any authorities.
[22]
In
S v
Vilakazi
[8]
it was held that:
‘
.
. . it would be most unjust if the period of imprisonment while
awaiting trial is not then brought to account in any custodial
sentence that is imposed.’
[23]
In
S v
Radebe
[9]
it was held that:
‘
.
. . the period in detention pre-sentencing is but one of the factors
that should be taken into account in determining whether
the
effective period of imprisonment to be imposed is justified: whether
it is proportionate to the crime committed . . . whether
the sentence
in all the circumstances, including the period spent in detention
prior to conviction and sentencing, is a just one.’
[24]
In
S v
Ngcobo
[10]
Pillay AJA held that ‘a pre-conviction period of imprisonment
is not, on its own, a substantial and compelling [factor]’
but
merely a factor in determining whether a sentence is unjust or
disproportionate. In particular, it was held that a period of
two
years would only make a marginal difference to the sentence of life
imprisonment and accordingly did ‘not render the
sentence
shockingly disproportionate’.
[11]
[25]
Before us, Mr Naidoo submitted that whilst the circumstances of the
offence are extremely serious,
which do not warrant a lesser sentence
than that of life imprisonment, any sense of an unjust sentence could
be mitigated by simply
antedating the sentence of life imprisonment
to the date of the appellant’s arrest. This would have the
effect of moving
the date when he would become eligible for parole
forward by just over three years. Whilst on the face of it this
appeared to be
an imminently sensible proposal, which would still
recognise the extreme seriousness of the offence whilst balancing it
with the
personal circumstances of the appellant, such an order would
not be permissible.
Section 282
of the
Criminal Procedure Act 51 of
1977
[12]
only allows a
sentence to be antedated to a specific date ‘…which
shall not be earlier than the date on which the
sentence of
imprisonment imposed on conviction was imposed’. The section
furthermore only allows for the antedating of a
sentence if a
sentence is set aside on appeal or review and a new sentence of
imprisonment is thereafter imposed.
[26]
In
S v
Hawthorne en ‘n ander
[13]
it was held that it is not possible to order that a sentence be
antedated to the date of arrest. The headnote reads as follows:
‘
In
terms of s 32(1) of the Prisons Act 8 of 1959 a sentence of
imprisonment takes effect on the day upon which that sentence is
imposed and a court cannot order that such sentence should run from
the date of the accused's detention. It speaks for itself,
however,
that a trial Judge, in imposing sentence, can take into account the
fact that the accused has been in detention for a
long time, and he
can apply that fact for the benefit of the accused,
inter
alia
, by making the period of
imprisonment which is actually imposed shorter than it would
otherwise have been. The principle which
appears in s 32 (1) is
peremptory and not merely directory.’
[27]
In
Hiemstra’s
Criminal Procedure
[14]
it was stated that ‘the commencement date of the sentence can
never be earlier than the date of the original sentence’.
Reference was made to
S
v Jacobs
[15]
where the sentence was antedated to the date of incarceration, which
was a date before the original sentence was imposed, and it
was
submitted that the court in that matter had erred when it antedated
the sentence. Reference was also made to
section 39(1)
of the
Correctional Services Act 111 of 1998
, which provides that a sentence
of imprisonment takes effect from the date when it was imposed.
[28]
As far as the appellant’s personal circumstances are concerned,
there is nothing special
that in our view would qualify as
substantial and compelling. An accused’s personal circumstances
tend to fade into the background
when he has been convicted of a
serious offence warranting a lengthy period of imprisonment.
[16]
In our view, the magistrate did not misdirect herself when sentencing
the appellant as she did. She correctly took into account
the
seriousness of the offence as well its prevalence. As mentioned
above, the appellant brutally attacked and killed the deceased,
an
elderly and vulnerable member of society, which in our view outweighs
the rather ordinary personal circumstances of the appellant.
Despite
the appellant’s apparent youthfulness, the degree of violence
involved in the commission of the offence fortifies
our view that the
appellant was correctly sentenced to life imprisonment.
Order
[29]
We accordingly make the following order:
1.
The appellant’s appeal against his conviction and sentence
is
dismissed.
E
BEZUIDENHOUT J
GWAGWA
AJ
Date
of hearing:
15 March
2024
Date
of judgment:
25 March 2024
Appearances:
For
the appellant:
Ms A
Hulley
Instructed
by:
Legal
Aid Board
For
the Respondent:
Mr D
Naidoo
Instructed
by:
Director
of Public Prosecutions
Email:
kgovender@npa.gov.za
[1]
It
consisted
inter
alia
of a confession made to a constable.
[2]
S v
Miggel
2007
(1) SACR 675 (C).
[3]
R v
Dladla and others
1962 (1) SA 307
(A) at 310C-E, the appellate court quoting with
approval what was stated by the trial court.
[4]
S v
Malgas
2001 (2) SA 1222 (SCA).
[5]
S v
Rabie
1975 (4) SA 855 (A).
[6]
S v Van
de Venter
[2010] ZASCA 146; 2011 (1) SACR 238 (SCA).
[7]
S v
Truyens
[2011] ZASCA 110; 2012 (1) SACR 79 (SCA).
[8]
S
v Vilakazi
[2008]
ZASCA 87
;
2009 (1) SACR 552
(SCA) para 60.
[9]
S v
Radebe and another
[2013] ZASCA 31
;
2013 (2) SACR 165
(SCA) para 14.
[10]
S v
Ngcobo
[2018] ZASCA 6
;
2018 (1) SACR 479
(SCA) para 14.
[11]
Ibid para 21.
[12]
Section
282
provides as follows: ‘Whenever any sentence of imprisonment,
imposed on any person on conviction for an offence, is set
aside on
appeal or review and any sentence of imprisonment or other sentence
of imprisonment is thereafter imposed on such person
in respect of
such offence in place of the sentence of imprisonment imposed on
conviction, or any other offence which is substituted
for that
offence on appeal or review, the sentence which was later imposed
may, if the court imposing it is satisfied that the
person concerned
has served any part of the sentence of imprisonment imposed on
conviction, be antedated by the court to a specified
date, which
shall not be earlier than the date on which the sentence of
imprisonment imposed on conviction was imposed, and thereupon
the
sentence which was later imposed shall be deemed to have been
imposed on the date so specified.’
[13]
S
v Hawthorne en ‘n ander
1980
(1) SA 521
(A) at 521.
[14]
A
Kruger
Hiemstra’s
Criminal Procedure
(SI
17, 2024) at 28-44.
[15]
S
v Jacobs
2021
(2) SACR 644
(WCC) para 36.
[16]
S
v Vilakazi
[2008]
ZASCA 87
;
2009 (1) SACR 552
(SCA) para 58.