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[2011] ZASCA 60
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Mpungose and Another v S (460/10) [2011] ZASCA 60 (31 March 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 460/10
In the matter
between:
MBANGISENI ELIAS
MPUNGOSE
............................................
First
Appellant
SABELO CYRIL
KHUMALO
...................................................
Second
Appellant
and
THE STATE
...........................................................................................
Respondent
Neutral citation
:
Mpungose v The State
(460/10)
[2011] ZASCA 60
( 31 March 2011)
Coram:
CLOETE, MAYA JJA and PETSE AJA
Heard:
03
March 2011
Delivered:
31
March 2011
Summary:
Criminal
procedure – admissibility of hearsay evidence in terms of
section 3(1)(c)
of the
Law of Evidence Amendment Act 45 of 1988
–
hearsay evidence of identification by deceased rape complainant found
admissible by trial court unreliable – conviction
and sentence
set aside.
__________________________________________________________________________________
ORDER
__________________________________________________________________
On appeal from: KwaZulu-Natal High Court (Pietermaritzburg) (Van Der
Reyden J sitting with an assessor as court of first instance):
The appeal is upheld. The conviction and sentence imposed by the
KwaZulu-Natal High Court are set aside.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
MAYA JA (CLOETE JA and PETSE AJA concurring):
[1] The appellant was indicted in the KwaZulu-Natal High Court
(Pietermaritzburg) on (a) a charge of rape of 15 year-old Celukuphila
Mlambo (the deceased) and – together with his co-accused,
Sabelo Cyril Khumalo – (b) further charges of the murders
of
the deceased, her mother Teyisile Bulawelani Myaka and her 14
year-old cousin, Sipho Ndawonde, (c) unlawful possession of two
AK47
rifles and (d) unlawful possession of several live rounds of
ammunition. He pleaded not guilty to all the charges but was
convicted of rape and sentenced to undergo life imprisonment. Khumalo
was convicted only of unlawful possession of firearms and
ammunition
and sentenced to undergo an effective term of imprisonment of 20
years. The court below granted both men leave to appeal
against their
convictions and sentences to this court but Khumalo, who was granted
R30 000 bail pending appeal, did not pursue
the matter. Thus, only
the appellant prosecuted his appeal before us.
[2] It became clear during the hearing of the appeal that the
appellant had been wrongly convicted. To avoid any further prejudice
to him – he had been in custody since 2004 – we decided
to make an
ex tempore
order to ensure his immediate release.
Accordingly, his conviction and sentence were set aside. The
following are the reasons for
that decision.
[3] The nub of
the State case in the trial proceedings
1
was that the
appellant raped the deceased, who subsequently identified him to the
police and that he, upon his release from custody
on bail and with
the assistance of various mediators, tried to have her family
withdraw the rape charge. When his attempts failed
and the trial
looked set to proceed, he murdered the deceased, her mother and their
young relative who was visiting their home
at the time. (The three
deceased were brutally gunned down at their home, during the night,
just a month before the date on which
the rape trial was
due to commence.)
[4] In seeking to prove its case against the appellant, the State
relied, inter alia, on (a) two statements made by the deceased
to the
police shortly after the rape, which it successfully applied to have
admitted in terms of
s 3(1)(c)
of the Law of Evidence Amendment Act
45 of 1988 as they constituted hearsay evidence in view of her death
and unavailability to
testify at the trial; (b) a medical report
prepared by the district surgeon who examined the deceased; and (c)
the testimony of
the following witnesses: Mr Lakalubi Anthony Nxele,
a local taxi operator and shopkeeper, who found the deceased
immediately after
the rape; his wife, Audrey Nxele, to whom he handed
over the deceased; Detective Sergeant Langeni, the police officer who
arrested
the appellant after the deceased identified him as the
culprit; Messrs Bhekuyise Mthethwa, Bhekokwakhe Blessing Qoma, Eric
‘Zazi’
Qoma, Mshoniseni Nzama and Mrs Ntombikayise Qoma
(Mrs Qoma) who alleged to have approached the deceased’s family
at the appellant’s
instance to seek pardon for the rape; and Mr
Maphethelo Solomon Myaka, the deceased’s maternal uncle to
whom, it was claimed,
the entreaties were made.
[5] On the undisputed facts it is clear that the deceased was raped –
the hotly contested issue was whether the appellant
was her
assailant. The medical report handed in by agreement recorded that
the deceased’s private parts were bloodied, bruised
and swollen
and that her hymen had fresh tears. The district surgeon’s
conclusions were
‘
Grass
found on the perineum and outside the labia. Definitely raped and on
a bush/dry grass area’.
[6] The relevant viva voce evidence began with Nxele’s account
that whilst driving home, he saw a distraught partially dressed
young
girl, who was screaming and clasping some of her clothing in her
hands, run into the road. He stopped his vehicle to investigate.
She
told him that she had been raped by a man unknown to her who drove a
silver grey Golf 4 vehicle. A vehicle fitting that description
which
was owned by the appellant, a fellow taxi operator he knew, had just
driven past him travelling in the opposite direction.
He took the
deceased home to his wife who would be better placed, as a woman, to
assist her. He then reported the matter at the
police station but did
not mention that he had seen the appellant’s vehicle near the
rape scene.
[7] Mrs Nxele confirmed that her husband had brought the deceased
home. She was crying and her mouth was swollen. Her skirt was
torn
and she was covered in grass. The deceased recounted her ordeal and
described the rapist’s vehicle to her. She wrote
its
registration numbers on a piece of paper which she gave to her
husband as he was going to the police to report the matter.
[8] The actual rape
is described in the deceased’s statements whose admission is
one of founts of controversy in this appeal.
(I deal in due course
with the admissibility of these statements.) The first statement
records that it was made at 17h49 on 13
July 2004, the day of the
rape which had occurred around 13h00. It reads:
‘
Celukuphila
Ngizwe Mlambo states in Zulu under oath.
1.
I am Celukuphila
Ngizwe Mlambo and African female youth born in 1989-09-10 (15)
residing at Onyango Area under Induna Sibisi, a
leader at
Isihlahlasenkosi High School doing Grade 8 and a victim in this case.
2.
On 2004-07-13 at
about 13:00 I was at KwaMusi Bus stop (T-juction to Obhokweni Area)
waiting for a bus as I was proceeding to Okhukho
Area. I came across
an unknown a/female who was waiting for a transport to Nongoma at the
bus stop.
3.
A certain Silver
Grey Gold, I can’t recall the vehicle’s registration
number but I gave it to Mrs Nxele of Obhokweni
Store driven by an
unknown make but I can be able to identify him, approached us and
requested me from that unknown a/female to
accompany him in order to
direct him to a certain homestead at Obhokweni Area. I refused and
that a/female insisted that I accompany
him eventually I agreed but I
was reluctant to go since I feared for my life should anything happen
to me.
4.
We then drove off
and at a certain spot the driver complained about a running stomach.
He then stopped the m/vehicle he then walked
around it and came
towards my door and opened it he ordered me to get off. I refused
saying that I don’t see any homestead
in that area. Since he
was insisting I alighted from the m/vehicle and he showed me a
certain path towards the forest.
5.
When we reached that
forest he closed my mouth with his hand and toppled me with his feet
and I fell with my face towards the ground.
When I tried to wake up
he grabbed me with my hand and turned me upwards. After that he
ordered me to take off my skirt. I refused
and he pulled it off
forcefully. He then instructed me to take off my panty I didn’t
respond and he took it off and also
my takkies.
6.
After that he got on
top of me and ordered me to open up for him (he said “phakamisa
imilenze’) I did not respond and
he grabbed both legs and held
them upwards he then came in between my legs. He then inserted his
penis inside my vagina followed
by up and down movements for several
times during that process he was trying to kiss me and when I tried
to close my mouth he threatened
me with his firearm.
7.
I tried to scream
since I was feeling some pains but he continued. He also took his
saliva with his finger trying to smear it on
my vagina but I pushed
the hand away. After he had finished he gave me the toilet paper to
wipe my private parts. After that he
left me there.
8.
I can be able to
identify my rapist he was short light in complexion with scars on his
face (izingcabo) short hair, he was wearing
a khaki jacket, khaki
takkies, navy with white stripes pair of trousers and golf shirt.
9.
I also wish to state
that I didn’t give consent to my rapist to have sexual
intercourse with me and I desire police investigation.
That is all I
can state.’
[9] The second
statement is dated 15 July 2004. It reads:
‘
I
am a complainant in this case. To my statement I made before there
are facts which I would like to add which were omitted due
to the
fact that I wrote the previous statement after having been
traumatised.
The incident
occurred on 2004/07/13 at about 13:00 at KwaZola Area while I was at
Ngculaza bus stop proceeding to Okhukho Area coming
from Onyango
Area. At the bus stop I was with an unknown woman. While still there
a silver grey motor vehicle came from Zola direction.
The motor
vehicle was being driven by a driver unknown to me and there were no
passengers in it. He stopped next to us and said
I should come to
him. I refused and the woman I mentioned above told me to go to him
and I did as I was told. On my arrival to
him he requested me to
accompany him so as to call him a certain lady residing at Obhokweni
Area. I then boarded the said motor
vehicle and the road we were
using is between the forest and is proceeding to Obhokweni Area.
Then we were right
in the forest the driver told me that he was suffering from stomach
ache and he stopped the motor vehicle and
said to me I should also
come out of the m/vehicle so that he could show me the homestead of
the lady I was going to call and I
refused and ran away. I tried to
shout calling for assistance but he used his hand to shut my mouth
and he pulled me into the bush.
When we were in the bush he pushed me
down and pressed me with his knee on my breast. He told me to pull
off my panty and I refused
and seeing that I was refusing he pointed
me with a small firearm. I refused and seeing that I was not
responding he pulled my
skirt off and it tore in the front.
He then pulled off
my panty and he slept on top of me. I shouted and he throttled me on
the neck and told me open my legs apart
and I refused then took his
firearm with one hand and promised to shoot me. He pulled my legs
apart and he got inside during that
time he had already pulled off
his trousers.
He then told me to
open my mouth I refused seeing that I was refusing he forced my mouth
apart and he put his tongue inside my mouth
I bit his tongue. He
pressed me down and continued to eject his penis inside my vagina and
made up and down movement till he ejaculated
and finished. He then
took out a tissue inside his pocket and told me wipe the smear. I
took the said tissue and wipe my private
part (vagina). I then
dressed up and took my bag and proceeded to Obhokweni. He then took a
U-turn. I went for about a few distance
and came van driver by Mr
Nxele. He stopped and asked my identity and I told him. I further
told him that I had been raped by an
unknown male person who was
driving a silver grey. He then said to me I should inform my mother
of all what happened.
I alighted at his
store at Obhokweni Area and he told me to tell the whole story to his
wife I also told her the registration number
of the motor/vehicle
which was used by the suspect. The registration number of the
suspects m/vehicle is ND 354 645 silver grey.
She wrote the
registration number on a small paper. She then phoned the police and
the police came. The police took me to the doctor
and a statement was
taken from me.
The police took me
to Mr Nxele’s homestead and on the following day the police
came back and said I should come in hurry and
we went to Ulundi. On
our arrival to Ulundi I was fortunate to see the motor vehicle that
was used by the suspect who raped me.
In fact I easily identify it by
its colour and registration number. The said car had four to five
people inside.
The police stopped
it and the police told me to point the person who raped me and
without hesitation I pointed him out because although
it was my first
time to see him I easily described him even to the police at the
police station when making a statement. The suspect
was then
arrested.’
[10] Detective
Sergeant Langeni, the arresting officer, testified that after
receiving Nxele’s report he fetched the deceased
from Nxele’s
home and took her to the police station. There, she was attended by a
police-woman who took her first statement
and arranged her medical
examination. The deceased had to undergo a further medical procedure
on the following day. As he drove
her to the surgery in Ulundi, the
deceased pointed out a silver grey VW Golf vehicle with registration
numbers ND 357645 at a set
of robots. He stopped the vehicle and its
driver, the appellant, and his three passengers got out. He was
explaining to the appellant
why he had stopped him when the deceased,
whom he had left in the police van, got out of the vehicle and came
to them. She pointed
at the appellant, crying, and said ‘here
is the person who raped me’. The appellant asked him what was
going on. He
then told him about the rape and explained that the
deceased was identifying him as the culprit. The appellant did not
respond
and he arrested him.
[11] Next in the chain of evidence came Myaka. He told of receiving
various delegations who approached him at the appellant’s
behest. Some, he said, visited his home in his absence. The first
delegate was Mthethwa, a fellow worshipper and preacher in the
Shembe
Church. Mthethwa told him that he represented the appellant who
apologised for raping the deceased and offered compensation
of ten or
fifteen head of cattle. He refused the offer and told Mthethwa that
the matter was in the hands of the police. Mthethwa
returned shortly,
at night, in the company of two men, Dlamini and Buthelezi who said
they worked with the appellant in the taxi
industry. They said the
appellant was in the vehicle in which they travelled and
requested Myaka and his family to meet him
at Ulundi to discuss the
matter as his bail conditions restricted his movements. He told them
he would first have to confer with
his family.
[12] He convened a family meeting
at which the request was rejected and duly communicated the decision
to Buthelezi telephonically.
In the meantime, he had reported the
incident to his church whereafter another delegation manned by
Mthethwa, Nhlobofana Buthelezi,
Edwil Dlamini (who had since died)
and the Qoma men approached his family. They still sought forgiveness
for the appellant and
requested Myaka to accompany them and the
appellant to the Shembe Church leader, Inkosi Shembe. He refused both
requests.
[13] Then testified Mthethwa, the Qomas and Nzama. Except for Nzama,
who from his account had not had any contact with the appellant
in a
long time, all these witnesses knew the appellant only by sight. The
Qomas and Nzama were closely related to the Myakas. Of
the group,
only Mrs Qoma did not have links with the taxi industry and did not
claim direct contact with the appellant, alleging
to have been
approached by Eric and dealt only with him, Bhekokwakhe and a woman
she did not know.
[14] These witnesses said the appellant told each of them that he had
raped the deceased, and asked them to tender his apology
for his
wrongdoing and offer compensation in cattle or cash in return for the
withdrawal of the rape charge against him. The Qoma
men said the
appellant offered them incentives for their efforts if successful –
they were each promised a R2 000 reward
and Bhekokwakhe was further
promised employment as a driver of a taxi the appellant would
purchase.
[15] According to Mthethwa, the appellant approached him in September
2004 and asked him to tender his apology and compensation
offer of
six cattle to Myaka. The latter’s response was that Inkosi
Shembe wanted to meet the rapist. He told Myaka that
the appellant
was willing to do so but first sought the family’s forgiveness.
Myaka wanted to discuss the matter with his
family and they parted on
that note. Shortly thereafter, the appellant sent him on a return
mission with two business associates,
Dlamini and Buthelezi. Myaka
said he had reported the matter to his family and had no answer for
them. At the appellant’s
insistence, he phoned Myaka on the
following day to request him to accompany the appellant to the
meeting with Inkosi Shembe. Myaka
refused.
[16] Subsequently, Mthethwa, Dlamini, Buthelezi and others
accompanied the appellant to the church where they met the Inkosi.
The appellant told the Inkosi that he had come to seek forgiveness
for raping a child, Mthethwa continued. The appellant, followed
by
the rest of the group, then gave the Inkosi a R100 donation in
accordance with the church’s practice whereafter the Inkosi
blessed them and they left. After this visit the appellant asked him
to inform Myaka that he had seen Inkosi Shembe. He returned
to
Myaka’s home with Dlamini, Buthelezi and the Qoma men, with
whom they travelled from the taxi rank. He repeated the appellant’s
apology and tender of compensation. This time Myaka, who had gathered
his male relatives, told them that he could not help them
because the
deceased was not his, but his sister’s child. That was his last
effort and he was not further involved in the
matter.
[17] The Qoma men – who were uncle (Eric) and nephew
(Bhekokwakhe) – confirmed attending the mediation meeting with
Mthethwa and recounted two prior meetings with Myaka, who Bhekokwakhe
said he regarded as his own father. The peace-offering which
the
appellant mandated them to tender was ten cattle, they said. (But in
his police statement Eric said the appellant offered to
pay the
deceased’s family a sum of R10 000 which, when raised in
cross-examination, he said he forgot to mention.) Myaka
had told them
that Inkosi Shembe wanted the rapist to present himself to the church
and seek its forgiveness. According to the
Qomas, contrary to
Mthethwa’s version, on the day they approached Myaka with
Mthethwa, the latter told Myaka that Inkosi
Shembe wanted the rape
charge withdrawn and Myaka undertook to enquire from the Inkosi how
he could do that.
[18] At that meeting, the Qomas said, the Myakas had remonstrated
with them for aligning themselves with the appellant when they
were
related to their family. But, despite being admonished, their
involvement in the matter did not end there. They, instigated
by the
appellant and a woman said to be his sister, made further,
unsuccesful attempts thereafter to persuade the deceased’s
mother directly, with the help of her cousin and work colleague
married into their family, Mrs Qoma (she confirmed her involvement
in
those efforts), to withdraw the charge in return for ten cattle.
[19] Nzama, the last
witness in this regard, said that he was initially approached by Eric
(who, however, did not mention this in
his testimony) with the
message that an acquaintance of old in the taxi industry, the
appellant, sought his help and wished to
contact him. He, thereafter,
received a phone call from the appellant who requested him to enquire
from Myaka when he could deliver
the cattle for the ‘wrong he
had committed’. He then went to Myaka with Bhobho, Myaka’s
brother. Myaka reported
that the appellant had just left and that he
had told his delegation, who said they had seen Inkosi Shembe about
the matter, that
he would also consult the Inkosi. That was the end
of his involvement.
[20] The appellant
testified and denied any wrongdoing, pointing out that he did not
match the description given by the deceased
to the police. He denied
admitting the rape, seeking forgiveness therefor or sending mediators
to the deceased’s family.
In the latter regard, he stated that
according to Zulu tradition a person who sought another’s
forgiveness sent members of
his own family, sometimes with neighbours
(but his own family’s involvement was crucial) as his
emissaries. He was not related
to any of the alleged mediators, whom
he barely knew if at all. They were instead relatives or close family
friends of the deceased.
He said that the State witnesses Mthethwa,
both Qoma brothers and Nzama all belonged to the IFP (despite their
denials) and opposing
camps within their taxi association arising
from political differences – the Bhengu group and Nkalankala
Zuma’s group.
He could not therefore trust them because of
their divergent interests in the taxi business and political
differences. He said
he met Mthethwa at the Shembe Church only during
a visit there for a taxi violence related issue and merely requested
his help
as one of the church’s elders to jump the queue and
meet the leader of that church.
[21] He raised an
alibi that he was away in Durban on the day of the rape. He had
travelled there with a colleague, Dlamini and
the latter’s wife
to meet Mr Winter Mvelase, the chairperson of the Long Distance Taxi
Association. They sought Mvelase’s
counsel because there was
conflict in the taxi business in their area and the chairperson of
their local taxi association had died.
They needed Mvelase’s
guidance on ways to restore peace and conduct elections for a
replacement leader as the Minister (presumably
of the Department of
Transport) had made regulations concerning the procedures governing
the election of taxi association functionaries
with which they were
unfamiliar.
[22] According to
the appellant, his problems started when he resigned his membership
from the Inkatha Freedom Party (the IFP) and
joined the African
National Congress (the ANC) whilst residing in the IFP-dominated area
of Nongoma-Ulundi. That decision earned
him and his parents great ire
from their IFP indunas and tribal authority who tried, albeit
unsuccessfully, to expel them from
their locality. Two attempts had
been made on his life between 1991 and 2001 which led him to employ
bodyguards (he had two VIP
bodyguards at the material time and one
testified in the trial in respect of the other charges) for
protection.
[23] He said he had
previously been falsely implicated in various criminal cases, one, a
widely publicised matter in the KwaZulu-Natal
High Court before JH
Combrink J who acquitted him when the state witnesses confessed to a
conspiracy to have him arrested on false
charges. The second attempt
on his life followed shortly after his acquittal in this matter.
About three weeks before his arrest
he had received a telephone call
from an unknown man who urged him to return to the IFP or face the
consequences. He believed the
rape charge was yet another scheme
against him by his political opponents because of his ANC membership
and prominent position
in the taxi industry. According to him, Nzama
probably bore him a grudge for not using his influence (which he
withheld because
of Nzama’s involvement in taxi volence) to
help him secure a coveted taxi route in the latter half of 2004.
[24] Mvelase
testified on the appellant’s behalf and confirmed meeting him
and the Dlamini couple at Elangeni Hotel, Durban
around 15h00 on a
busy day during which
one of the meetings
he attended concerned the bus industry and the election of its board
of directors. The appellant had telephoned
a few days beforehand and
requested the meeting. The purpose of the meeting was to discuss the
election process of the chairperson
of the Mahlabatini Taxi
Association, to which the appellant belonged, as the incumbent
official had recently died and his advice
was sought because of his
involvement in the provincial structures of the taxi council.
[25] He met them
briefly at the hotel’s parking lot and arranged to meet them
later, at 17h00, as he had an imminent meeting
to attend. They met
later as arranged, discussed business and then parted. As far as he
could recall, the appellant and his party
travelled in a white Honda
Ballade. In his experience, the trip between Ulundi, from where the
appellant came, and Durban took
four to five hours because of the
road’s sharp bends, heavy traffic and constant police
surveillance. About three months
later the appellant telephoned him
and told him of his arrest in connection with a rape committed on the
day of their meeting.
The appellant requested him to vouch for his
whereabouts and he agreed.
[26] This is the
conspectus of the evidence led at the trial. The court below accepted
the evidence of all the State witnesses,
including the hearsay
evidence. Regarding
the
hearsay evidence, it relied on the decision of this court in
S
v Ndhlovu
,
2
for its finding that ‘the
totality or mosaic of the State case len[t] support to the credence
and evidential value of the
hearsay evidence contained in the
[deceased’s statements]’ and was satisfied that the
quality of such ‘hearsay
evidence and the extraneous
reliability guarantors’ justified its admission. Needless to
say in the light of the available
evidence, the hearsay evidence was
the mainstay of the State case and the main basis for the appellant’s
conviction.
[27] The defence
version, including the alibi evidence, was summarily rejected as
false. Without giving any reason for its preference
for the State
version regarding the evidence of the mediators, the court below held
‘
We
have no hesitation in rejecting [the appellant’s] explanation
for his visit to Inkosi Shembe as false beyond reasonable
doubt. We
are satisfied that we can accept Mr Mthethwa’s evidence as
truthful . . . Having done so we accept that [the appellant]
approached these witnesses with the request to persuade Mr Myaka to
have the rape charge withdrawn.’
[28] The one ‘flaw’
in the appellant’s version which was identified in the judgment
of
the court below was
his failure to respond with a denial when the deceased pointed him
out as her attacker. The alibi evidence was
found false beyond
reasonable doubt because, according to the court, Mvelase had
‘conceded’ that the appellant could
have
obtained his
guidance telephonically rather than travel to Durban; he had no
independent recollection of the day of the meeting
and accepted that
it occured on 13 July 2004 because the appellant told him so; and his
evidence that the appellant drove a Honda
vehicle contradicted the
appellant’s version that he drove his silver grey Golf 4
vehicle.
[29] The real issue
on appeal remains whether the appellant was properly identified as
the rapist and the challenge to the decision
of the court below
relates, mainly, to the admissibility of the hearsay evidence, the
weight the court below attached to the evidence
of the mediators and
its rejection of the appellant’s alibi.
[30] I deal first
with the evidence of the mediators. The court below acknowledged the
‘differences and apparent contradictions
in their evidence’
but found them trifling having regard to the fact that ‘there
were several delegations and protracted
negotiations over a period of
time’. In the court’s view, the inconsistencies rather
supported the absence of a conspiracy
to falsely implicate the
appellant. But it found that the appellant’s use of the word
‘rape’ in the course of
the negotiations did not
constitute an admission and was used ‘merely as a reference to
the charge he was facing’.
[31] I respectfully
disagree with these findings. Apart from the contradictions relating
to the dates, times
and number of the meetings, the parties present thereat, the number
of cattle or even the nature of compensation
offered by the appellant
and the responses of the deceased’s family (which are not
detailed exhaustively in the summary of
the evidence above) there are
other factors to be considered which, in my view, detract from the
evidence of these witnesses.
[32] First, it is
readily apparent from the record that the mediation witnesses (I deal
later with the quality of the testimony
of the Nxeles), with the
exception of Mrs Qoma who was examined only briefly and not on the
relevant aspect, lied when they were
questioned about their political
affiliations and the political dynamic in their area which
constituted an important part of the
appellant’s defence. All
claimed to have been born and bred in Ulundi. Whilst one understands
their reticence regarding their
political allegiance, if any, which
they were not in any event compelled to disclose, they were extremely
evasive. Pleading ignorance,
they steadfastly refused to answer even
innocuous questions relating to the existence of political activity
let alone the existence
of the political organisations IFP and ANC in
the area.
[33] There is then
the evidence of a custom which requires the wrongdoer’s family
to negotiate pardon on his behalf said,
by the appellant, to be
commonly practised in Zulu tradition, which was corroborated by two
State witnesses. Myaka’s response
when it was suggested to him
in cross-examination was that he had in fact asked Mthethwa why the
appellant had not sent members
of his own family to him. Nzama also
did not deny its existence and merely said that the appellant did not
employ it but chose
to approach him. The appellant insisted that he
would have followed that custom had he made the alleged approaches
and no reason
presents itself on the evidence as to why he should be
disbelieved.
[34] As indicated,
it was common cause that the appellant and the mediators barely knew
one another. Without even considering the
appellant’s theory of
a trumped-up charge borne of political enmity and business jealousy
to which these witnesses were party,
to my mind, it strains credulity
that a person who had been charged with an extremely serious offence
meriting the maximum penalty
and thus knew the extent of his
troubles, would openly admit committing the offence to strangers he
knew had close ties with his
victim even before they agreed to assist
him as was alleged. I find it even harder to believe that those
people, in turn, with
a damning admission in hand, would simply
acquiesce and shilly-shally over a protracted period instead of
promptly rejecting and
reporting the unwanted advances to the
authorities.
[35] There is
another feature of the evidence that, I think, merits attention in
this regard. One of the State’s intended
witnesses, Ms Mamrie
Sibongakonke Ngcamu, did not testify. However, she had given the
police an elaborate and damning account against
the appellant,
detailing at great length her attempts to persuade the womenfolk of
the deceased’s family to withdraw the
rape charge against the
appellant, her boyfriend’s employer, on the promise of a cash
reward if she succeeded, and how the
appellant committed the murders
in her presence when mediation failed. She recanted her statement
before the trial commenced and,
quite bizarrely, confessed to a plot
to falsely implicate the appellant. Whilst all sorts of inferences
may be drawn from her recantation,
one nonetheless cannot speculate
and her conduct must be viewed against the backdrop of acceptable
evidence. The appellant’s
testimony of other attempts to impute
false charges against him was not gainsaid and Ngcamu’s strange
conduct and the other
factors, in my view, create considerable
suspicion and cast doubt on the veracity of the mediators’
testimony and their motives.
[36]
I have serious reservations too about the rejection of the
appellant’s version when it was not shown to have been
inherently
improbable.
3
This is particularly so when it is
apparent that the court below misconstrued or disregarded portions
thereof. For example, the
court below found, as part of ‘the
mosaic of the State case’ which lent credence to the hearsay
evidence, that the
appellant’s ‘only response [when
identified by the deceased] was merely to ask what was going on’,
‘did
not respond with a denial’ and ‘elected to
remain silent’. This finding constitutes a misdirection as it
overlooks
the appellant’s unchallenged evidence that when the
deceased pointed him out he did ask what was going on and started to
explain that the deceased was making a mistake but was silenced by
Langeni who instructed him to give his explanation at the police
station. Other than this feature, the court did not say why it found
the appellant’s version unsatisfactory. Similarly, State
counsel was unable to point out to us any flaw in his evidence which
would justify its rejection.
[37] Regarding the
alibi evidence, which received equally short shrift from the court
below, one of the reasons it gave for rejecting
Mvelase’s
evidence, ie that the appellant had given him the date of their
meeting, is not borne out by the record. Mvelase
stated
categorically, without challenge, that the appellant did not mention
the actual date to him and merely told him that he
was accused of
committing a rape on the day on which they had met. He then proceeded
to explain that he recalled the day because
of the nature of his
discussions with the appellant whom he met for the first time and the
bus meeting.
[38] A court’s
approach to alibi evidence is trite. The burden rests only on the
State, to
prove
it false and if, on a totality of the evidence, there is a reasonable
possibility that it is true, then there exists the same
possibility
that the accused has not committed the crime.
4
And where the alibi or denial of
guilt might reasonably be true, the State has failed to discharge its
onus to prove beyond reasonable
doubt that the accused is guilty and
he must be acquitted.
[39] It must be
considered that Mvelase had no close relationship with the appellant
and, thus, no reason to lie for him. The very
fact that he gave a
wrong description of the vehicle driven by the appellant, in my
opinion, shows his lack of interest in exculpating
the appellant and
the outcome of the case. The description of the vehicle
which the appellant
drove on the relevant day, being one of the key components of the
alibi, one
reasonably expects that he would otherwise have been drilled on that
aspect if he was a witness of convenience.
[40] He, obviously,
was not told what to say in court. In any event, he stated that he
had no clear recollection of the vehicle.
The reasons he gave for
remembering the
particular day seem,
to me, entirely cogent. And, contrary to the approach of the court
below, the appellant’s decision to
have a personal meeting with
their provincial chairman, an important official, seems more fitting
than a casual telephone discussion
particularly considering the
serious and sensitive nature of the matters in respect of which they
sought advice.
[41] As to the
hearsay evidence, its admission is permissible if the jurisdictional
factors and safeguards set out in s 3(1) of
the Act are present.
Section 3(1)(c) thereof, which was invoked by the State for the
admission of the deceased’s statements,
provides:
‘
3.
Hearsay
evidence
Subject to the
provisions of any other law, hearsay evidence shall not be admitted
as evidence at criminal or civil proceedings,
unless–
. . .
(c) the court,
having regard to–
(i) the nature of
the proceedings;
(ii) the nature of
the evidence;
(iii) the purpose
for which the evidence is tendered;
(iv) the probative
value of the evidence;
(v) the reason why
the evidence is not given by the person upon whose
credibility the
probative value of such evidence depends;
(vi) any prejudice
to a party which the admission of such evidence might
entail; and
(vii) any other
factor which should in the opinion of the court be taken into
account,
is of the opinion
that such evidence should be admitted in the interests of justice.’
In terms of subsec
3(4), ‘hearsay evidence’, for the purposes of the
section, ‘means evidence, whether oral or
in writing, the
probative value of which depends upon the
credibility of any
person other than the person giving such evidence.
[42]
The challenge to the hearsay evidence related mainly to its probative
value and the prejudice its admission entailed to the
appellant. I
must say at the outset that in dealing with this evidence, the court
below seems to have paid inadequate attention
to the fact that the
deceased, whose evidence would not be tested in cross-examination
with all the dangers that posed,
5
was also a child and a single witness
in respect of the issue of identification (which created a greater
potential for mistaken
observations and other risks such as
suggestibility). This court has repeatedly emphasized the need for
scrupulous scrutiny when
dealing with hearsay evidence especially
that of identification.
6
[43]
In
S
v Mamushe
v
The
State
7
Brand JA neatly encapsulated the
legal position as follows:
‘
[W]hat
has by now become axiomatic, is that our courts apply considerable
restraint in allowing (or relying on) hearsay evidence
against an
accused person in criminal proceedings. The reasons for this
restraint have become equally well settled. They flow mainly
from the
nature of the onus that rests on the state and from the rights of an
accused person underwritten by the Constitution (see
eg
S
v Ramavhale
1996
(1) SACR 639
(A) at 647i-648b;
S
v Ndhlovu
[2002 (2) SACR 325
(SCA)] para 16 at 337a-c). An important
consideration in deciding whether the court should overcome its
general reluctance to admit
the hearsay evidence under consideration
in a particular case, relates to the role that the evidence will
play. It stands to reason
that a hearsay statement which will only
serve to complete a ‘mosaic pattern’ will be more readily
admitted than one
which is destined to become a vital part of the of
the state’s case ...
. . .
[B]y its very
nature, hearsay evidence cannot be tested in cross examination. The
possibility of mistake can therefore not be excluded
in this way. The
result is, in my view, that hearsay evidence of identification can
only be admitted if the possibility of mistake
can safely be excluded
in some other way, eg with reference to objectively established
facts.’
[44]
Relevant to this enquiry is the issue of the rapist’s
identification which the hearsay statements sought to establish.
As
has been mentioned, the appellant strenuously challenged the
identifying features given by the deceased in her police statement.
He protested during his evidence, that he was not of light
complexion. Furthermore, according to the record, his facial features
were inspected by the trial judge during argument on the merits of
the case and consensus was reached that whilst he had old facial
scars, he had no
izingcabo
marks
although nothing was then said about his complexion. But it does not
appear from the judgment of the court below that it considered
this
crucial aspect of the evidence at all in the final analysis.
[45]
The appellant’s persistent protestations and offer to present
himself before the appeal court for inspection in his heads
of
argument prompted us to direct counsel to furnish us with his
photograph to enable us to assess the disputed features. His
photograph was subsequently filed jointly by the parties’ legal
representatives together with a joint memorandum which recorded
their
observations. We were also furnished with a photograph of another
prisoner with
izingcabo
marks
for comparative purposes. The appellant’s photograph, as
acknowledged by both counsel, clearly showed that the appellant’s
complexion is dark and that his face bears no
izingcabo
marks. The marks on the appellant’s face, such as
they are, cannot by any stretch of the imagination be confused with
izingcabo
marks- the latter are deep and long, three over each cheek
and one on the forehead; the former are hardly noticeable by
comparison.
How this glaring discrepancy which goes to the heart of
the case (and which counsel for the State was constrained to concede,
severely
impacted on the State case) escaped the attention of the
court below is beyond comprehension.
[46] In her first
statement given to the police a few hours after the rape, the
deceased stated that she no longer remembered the
registration
numbers of her assailant’s vehicle but said that she had given
the particulars to Mrs Nxele who wrote them down.
Surprisingly, in
her next statement made two days later, after the appellant’s
arrest, she remembered these details. She
said the vehicle’s
registration numbers were ‘ND 354645’. Mrs Nxele gave,
from memory, an identical description
in her police statement of the
same day. Strikingly, the description of each witness, whilst close,
did not match the appellant’s
vehicle whose registration
numbers were ‘ND 357645’.
[47] It seems to me
that the fact that these two individuals made the same mistake should
have stirred considerable unease in the
mind of the trial judge. This
is particularly so considering the mysterious fate of the crucial
scrap of paper with the registration
numbers of the rapist’s
vehicle, which Mrs Nxele said she gave to her husband to give to the
police, for which no one accounted
but did not appear to have reached
the police. Another cause for concern is the appellant’s
evidence, which the prosecutor
did not challenge, that there were
other vehicles of the exact make and colour as his in the Mahlabatini
area.
[48] There is,
furthermore, Nxele’s curious failure to tell the police that he
had seen the appellant’s vehicle in the
vicinity of the rape
scene when he reported the offence after leaving the deceased in his
wife’s care. On both his and his
wife’s version, the
deceased had carefully described the assailant’s vehicle to
them. From that description he should
have recognised the appellant’s
vehicle, well known to him by his account. It would have been most
natural for him in those
circumstances to tell the police that the
description of the assailant’s vehicle matched that of a
colleague’s vehicle
he had seen near the rape scene just after
the rape.
[49] His excuse for
this vital omission under cross-examination was that he had received
an anonymous phone call threatening to
impoverish him if he did not
distance himself from the rape incident. But, on his version, the
alleged threat was made some days
after the incident and his visit to
the police. It simply could not have influenced his decision to
conceal this valuable evidence.
[50] None of these
discrepancies, which were all material and demanded explanation, seem
to have been considered by the court below.
In my view, they each
cast serious doubt on the reliability of the description of both the
rapist and his vehicle given by the
deceased and severely compromised
the probative value of the hearsay evidence. Contrary to the finding
of the court below in this
regard, the ‘extraneous guarantees
of reliability’ envisaged in
Ndhlovu
did not exist in
the light of these inconsistencies. The admission of the deceased’s
statements entailed serious prejudice,
both procedural and
substantive, to the appellant and ran counter to the interests of
justice. The hearsay evidence, which, as
I have said, was not merely
another piece of the puzzle but was pivotal to the State case and
thus fell in the category cautioned
against in
Mamushe
, should
not have been admitted.
[51] This finding
destroys the State case as what remains of its non-hearsay evidence
does not link the appellant to the offence
in any way. (A DNA
analysis had been conducted but was inconclusive and despite the
deceased’s statement that she had bitten
the rapist’s
tongue, that does not seem to have been investigated.) The State
therefore failed to prove its case against
the appellant beyond
reasonable doubt.
____________________
MML Maya
Judge of Appeal
APPEARANCES:
For the appellant:
JE Howse
Instructed by: SP
Mncwango & Associates, Durban
Ponoane Attorneys,
Bloemfontein
For the respondent:
N Maphalala
Director of Public
Prosecutions, Pietermaritzburg
Director of Public
Prosecutions, Bloemfontein
1
It
bears mention that the trial proceedings
appear
to have been so highly charged that the court personnel including
the trial judge had been threatened with death and had
to be placed
under heavy guard for the duration
of
the court hearing.
2
S
v Ndhlovu
2002 (2) SACR 325
(SCA).
3
S
v Shackell
2001 (2) SA 185
(SCA) para 30;
S v V
2000 (1)
SACR 453
(SCA) para 3.
4
R
v Biya
1952 (4) SA
514
(A) at 521D-E;
R v
Hlongwane
1959 (3) SA
337
(A) at 340H-341B;
S
v Shabalala
1986 (4)
SA 734
(A) at 736B-C.
5
S
v Webber
1971 (3) SA 754
(A);
S v Sauls
1981 (3) SA 172
(A);
R v Manda
1951 (3) SA 158
(A) at 163C-F;
S v V
2000 (1) SACR 453
(SCA).
6
See,
for example,
S v Mthethwa
1972 (3) SA 766
(A) at 768A-D;
S
v Charzen
2006 (2) SACR 143
(SCA) para 11.
7
Mamushe
v The State
[2007]
SCA 58
(RSA) paras 16 and
18.