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[2022] ZAECMHC 40
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Velemani v S (CC18/2020) [2022] ZAECMHC 40 (6 October 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: MTHATHA]
CASE NO. CC18/2020
In the matter between:
NKOSIYOXOLO KAKUDI
VELEMANI
Applicant
vs
THE
STATE
Respondent
JUDGMENT
JOLWANA J
:
[1]
This matter concerns an application for leave to appeal. On 17
June 2022 I delivered a judgment in which the applicant
was found
guilty of assault with intent to do grievous bodily harm as a
competent verdict to a murder charge which was the main
charge that
he had been charged with. He was also found guilty of imputing
witchcraft in contravention of section 182 of
Act 9 of 1983. He
was thereupon sentenced to five years imprisonment for assault with
intent to do grievous bodily harm,
two years of which was
conditionally suspended for five years. In respect of the
imputation of witchcraft he was sentenced
to two years. The
two-year sentence in respect of the imputation of witchcraft was
ordered to run consecutively with the
three-year effective period of
imprisonment in respect of the assault conviction.
[2]
The applicant has applied for leave to appeal against both conviction
and the sentences imposed. During the hearing of
this matter
counsel for the applicant abandoned the application for leave to
appeal against conviction in respect of the imputation
of
witchcraft. That being the case I will not deal with it in any
detail, if at all. I do not intend to list the grounds
of
appeal which are, in any event, not a model of clarity and are very
difficult to understand. Counsel did clarify, if I
understood
him very well, that in essence, the applicant’s case is not
that he should not have been convicted of assault.
However, he
should have been convicted of common assault and not assault with
intent to do grievous bodily harm.
[3]
In some of the grounds appeal it is suggested that there was no
direct evidence by the State witnesses about the assault committed
by
the applicant. It is further suggested that no evidence was
adduced by the State indicating the nature of the injuries
that were
caused by the applicant.
[4]
I do not know if it was expected of the State to lead evidence that a
specific injury was attributable to a specific accused
amongst other
accused. I do not understand the legal position to be that
absent such evidence an acquittal must follow.
In this matter
there were initially nine accused some of whom became State witnesses
in terms of
section 204
of the
Criminal Procedure Act 51 of 1977
.
The trial of one of the accused was separated. I do not
understand the basis for the contention that people who were
charged
as a group of people that allegedly committed the offence, especially
where it is alleged that the deceased was assaulted
by a number of
them there must be specific detailed evidence about the role each
person played. I am not aware of the legal
requirement that
there must necessarily be evidence that a specific accused assaulted
the deceased on a specific part of the body
and that the other one
assaulted her on a different specific part of the body as a
requirement for a conviction. No authority
was cited for the
proposition that this is a
condictio sine qua non
in the
absence of which an acquittal must follow.
[5]
In the application for leave to appeal an issue is also taken about
the absence of evidence in respect of the weapon that the
applicant
was carrying which he used to assault the deceased and how many times
he assaulted the deceased. All of this ignores
the fact that in
assaulting the deceased the accused acted in concert and in execution
of a common purpose something which the
evidence established beyond
reasonable doubt. Furthermore, none of the accused were armed.
The other fact is that this
was a moving crime scene which started at
the Manundu homestead where the attack on the deceased by the accused
including the applicant
started. They then drove her, dragged
her along the way and assaulted her all the way to her homestead
where they eventually
killed her. However, there was no
evidence that the applicant entered the deceased’s homestead
where she was eventually
killed. The evidence suggested that he
had already dissociated himself during the time of the assault that
took place at
the deceased’s homestead. It was on that
basis that he was acquitted on the murder charge but found guilty of
the assault
with intent to do grievous bodily harm.
[6]
The applicant raised the issue of the lack of direct evidence of the
assault by the applicant. I was surprised that this
issue was
raised as it suggested that the applicant should only have been
convicted not on any other form of evidence other than
direct
evidence. The surprise arises from the fact that nobody who had
bothered to read the record or checked their own notes
and read the
judgment could have made that submission. In fact, concerned
about the issue of the alleged lack of direct evidence
being raised,
I enquired from counsel for the applicant if in fact he had read the
judgment at the very least. My suspicions
were, to my
bewilderment, confirmed as counsel confirmed that he last read the
judgment in his laptop shortly after it was emailed
to him. He
never bothered to read it in preparation for this application.
Needless to say that this is both disappointing
and unacceptable, to
put it mildly. I do not understand how one can come to court
and argue an application for leave to appeal
without either the
record of the proceedings and most importantly, the judgment appealed
against being part of the preparations.
The application for
leave to appeal emanates from the findings of the court in its
reasons for the verdict. The admission
by counsel that even
during the hearing he did not have a copy of the judgment with him
was a shocking revelation. It would
be both remiss of this
Court and indeed a dereliction of duty were I to turn a blind eye to
that degree of lack of preparation.
[7]
In the judgment there are a few paragraphs dealing with the evidence
in which the
section 204
witness, Nontsebenzo Yalwa, directly
implicates the applicant. Secondly while the applicant elected
not to testify in his
defence and therefore chose not to place a
version of events before court he did give a plea explanation.
In his plea explanation,
the applicant placed himself at the thick of
the things that were happening at the Manundu homestead during the
incident that led
to the death of the deceased. It appears in
his plea explanation that he was engulfed with anger after Samkelo’s
mother
asked him to come and hear what Zintle was saying about the
late Samkelo. He returned to the Manundu homestead and
participated
in questioning Zintle about the death of Samkelo.
Zintle mentioned the deceased. He then questioned the deceased
about
where Samkelo and a person he named as J who died in 2018
were. It later transpired in evidence that J was Sihle who had
died in 2018. The deceased allegedly said that they were in her
homestead. He was amongst those who took the deceased
to her
homestead but he received a call before reaching the deceased’s
homestead which is why he did not enter those premises.
[8]
The evidence established beyond reasonable doubt that the people who
drove and dragged and assaulted the deceased from the Manundu
homestead all the way to her homestead were the accused including the
applicant. However, the evidence did not establish
that he
entered the deceased’s homestead.
[9]
The issue is whether an accused person charged with the murder of a
deceased person in which he participated in the assault
with other
people should be convicted of common assault instead of assault with
intent to do grievous bodily harm as a competent
verdict to murder.
This question cannot be answered in a vacuum. It must be
answered on a case by case basis depending
on what the evidence in
fact establishes. In this case the assault, the dragging, the
driving and general degrading treatment
meted out on the deceased in
which the applicant participated was on an elderly woman estimated at
the time of her death to be
92 years old. The attack on and
abuse of the deceased in this case is not just an aberration.
Such attacks are in fact
intolerably too common including cases of
accusations of witchcraft such as this one. Our law reports are
literally littered
with cases where elderly people, especially women,
are attacked and often killed on wild, senseless and possibly
misogynist and
toxic masculinity inspired violent abuse which often
leads to killings. That behaviour cannot, in a constitutional
democracy
based on rule of law, be punished with a slap on the
wrist. This is especially where the deceased suffered so many
assault
injuries. A conviction of common assault would, in my view,
in this case, have amounted to complicity to the conduct of the
accused.
[10]
In fact the applicant got off very lightly in not being convicted of
murder considering that he played a leading role in the
unfolding
events that lead to the deceased’s ultimate death. There
is no doubt in my mind that the applicant was correctly
convicted as
there was a direct link between the assault he participated in and
the death of the deceased. I am fortified
in this view by the
sentiments expressed by the Constitutional Court in
S v
Phakane
2018 (1) SACR 300
(CC) at page 311 paragraph 43 in
which Zondo J, as he then was, said:
“
Assault
is a competent verdict for murder only if there is a link between the
assault and the charge of murder. The second
judgment accepts
that the charge of murder and that of assault were based on separate
incidents. The assault relied upon
is alleged to have taken
place on 20 August 2006. There is no basis in the record for
this latter statement. That there
must be a link between the
factual basis of the main count and the competent verdict means that
the assault must at least have
been part of the actus reus on which
the charge of murder was based. In this case the cause of Ms
Boshomane’s death
is unknown. If we do not know the cause
of the deceased’s death, we cannot know what verdict would be
competent to
the charge of murder.”
[11]
The evidence of Dr Jwaqa, the forensic pathologist who conduct the
post mortem examination of the deceased gave detailed evidence
of the
numerous injuries the deceased suffered which are consistent with
assault. This is besides the other injuries that
are related to
the burns. The evidence was that the assault on the deceased by
the accused started at the Manundu homestead
and continued as she was
driven and dragged like a dog to her homestead. This abuse was
on an elderly woman of 92 years old.
I cannot, within a clear
conscience, regard that kind of assault as assault common. The
nature of the assault, the injuries
sustained and the age and frailty
of the deceased must surely be some of the weighty considerations
that the court must take into
account in determining the type of
assault with which the accused must be convicted.
[12]
This brings me to the issue of the appropriateness of the sentence
imposed which amounts to an effective sentence of 5 years
in total
which the applicant must serve. The fact that the applicant had
already spent about two years in custody before
he was sentenced
makes little, if any difference at all on the facts of this case and
was in fact taken into account. Such
factual matrix includes
the fact that the applicant testified for purposes of the mitigation
of sentence. Instead of taking
responsibility for his actions,
he questioned his conviction contending that he was wrongly
convicted. This amounted to utter
disrespect for the court and
its processes. Most importantly, he never showed any remorse
even one limited to the extent
of his admitted participation.
He was non-repentant with no penitence or regret for what ultimately
happened to the deceased.
He could not even express the kind of
regret that would be expressed even solely on the basis of humanity
and empathy for the suffering
of others. Even worse a suffering
deliberately inflicted with his participation and encouragement as
was the case in this
matter.
[13]
There is yet another reason why I consider the sentence imposed to be
appropriate. That is that the pockets of our society
that
regard themselves as being entitled to conduct kangaroo courts,
persecute and mete out extracurial punishment including the
killing
of the elderly women who are regarded as witches is a cancer and an
abomination. It is a blight in our society that
must be
exorcised. I do believe that appropriately severe punishment is
one such method of dealing with this tumorous cancer
in our society
one incident at a time. Imputation of witchcraft especially
where it leads to violent abuse and killing must
also be punished
with an appropriately severe sentence.
[14]
For all the above reasons I am not of the opinion that the appeal
would have a reasonable prospect of success nor is there
a compelling
reason why the appeal should be heard. This is the test
provided for in
section 17
(1)(a) of the
Superior Courts Act 10 of
2013
. Therefore, the application for leave to appeal stands to
be dismissed.
[15]
In the result the following order shall issue:
1.
The applicant’s application for leave to appeal against
conviction and sentence is dismissed.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearance
Counsel for the
applicant: V. Ntshangase
Instructed by: Legal Aid
South Africa
UMTATA
Counsel for the
respondent: L. POMOLO
Instructed by: National
Director of Public Prosecutions
UMTATA
Date heard: 03 October
2022
Date delivered: 06
October 2022