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[2021] ZAGPPHC 184
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Masuku v S (A342/2019) [2021] ZAGPPHC 184 (2 February 2021)
SAFLII
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Certain
personal/private details of parties or witnesses have been redacted
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IN
THE HIGH COURTOF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A342/2019
REPORTABLE:NO/YES
OF
INTEREST TO OTHER JUDGES:NO/YES
REVISED
Dte:02
February 2021
AYANDA
ALFRED
MASUKU
APPELLANT
and
STATE
RESPONDENT
DATE
OF HEARING:
This
matter was enrolled for hearing on 10
SEPTEMBER
2020
,
but was dealt with or determined on the basis of the papers or record
and written argument filed on behalf of the parties, without
appearance and oral argument.
DATE
OF JUDGMENT:
This
judgment was handed down electronically by circulation to the
parties’ representatives by email. The date and time of
hand-down is deemed to be 2 FEBRUARY
2021
JUDGMENT
KHUMALO
J (NEUKIRCHER J concurring)
INTRODUCTION
[1]
The Appellant, is with leave of the Regional Court, Benoni (the court
a quo) appealing
against his conviction by the court’s learned
Magistrate Schutte on 27 June 2019, on charges of murder (read with
the provisions
of s 51 (2) of the Criminal Law Amendment Act 105 of
1997 (CLAA) and s 257 and 258 of the Criminal Procedure Act 51 of
1977 (CPA))
and assault, for which he was on 10 July 2019 sentenced
to a period of 14 years and 12 months imprisonment, respectively. The
sentences
were ordered to run concurrently. The effective sentence is
as a result 14 years’ imprisonment.
[2]
On the charge of murder he was found to have intentionally and
unlawfully murdered
one M N[…] (the deceased) on 27 October
2018 at or near Benoni, by stabbing him once with a knife. He was
also found on
the same date and place to have assaulted one S M[…]
(Miss M[…]) (the Complainant) by hitting her with open hands
and threatening to stab her with a knife.
[3]
The Appellant was duly represented during the trial and pleaded not
guilty to both
charges. On the charge of murder, he admitted to
having stabbed the Appellant once but pleaded self-defence. The
circumstances
under which the fatal wound was inflicted on the
deceased was in dispute.
[4]
The court a quo found that the Appellant’s guilt on both
charges was proven
beyond reasonable doubt, and relied on the
evidence admitted in terms of s 220 and of Miss M[…], a single
witness, whose
evidence it concluded was the truth and therefore
credible. The state was found to have discharged its onus to prove
its case beyond
reasonable doubt. The Appellant’s version,
which was the only one presented on his behalf, was rejected as false
and not
reasonably possibly true.
[5]
The salient facts are that on that day an altercation ensued between
Ms M[…]’s
nephew, A[…], the deceased (who is
A[…]’s friend) and the Appellant and his friend V[…].
V[…]
stayed with his grandmother who is Miss M[…]’s
neighbour. The fight took place in and near the backyards of Ms M[…]
and the grandmother’s houses. According to Miss M[…],
the deceased was trying to intervene, when he was stabbed to
death by
the […]year-old Appellant.
[6]
Ms M[...] was the only eye witness who testified for the state. On
the day of the
incident she was watching soccer on TV with Alex and
the deceased when the two left to buy alcohol at a tavern. Alex came
running
back and closed the door behind him. He was followed by
V[...] who came running accompanied by the Appellant. When Ms M[...]
asked
what was happening, Alex did not say anything. The Appellant
and V[...] tried to hit Alex who was hiding behind Miss M[...] and
instead had hit Ms M[...] instead with open hands on her face. V[...]
hit Miss M[...] twice and thereafter apologised and
told Miss
M[...] that their intention was to hit Alex. Miss M[...] tried to
stop the fight but V[...] continued and pulled Alex
outside the yard.
V[...]’s grandmother came into Miss M[...]’s yard and
threw stones at Alex. A stone struck Alex on
the face and he fell to
the ground. V[...] then hit Alex who was lying on the ground. Miss
M[...] asked the grandmother to reprimand
the children instead of
encouraging them to fight. The grandmother did not listen. The
deceased arrived whilst Ms M[...] was complaining
about also being
hit by V[...] and the Appellant. The deceased confronted V[...] and
the Appellant about it. The two turned on
the deceased and started
assaulting him as well. The deceased retaliated and a fist fight
ensued. Miss M[...] told the grandmother
that she is very brave to
come and start a fight in another man’s yard. That is when the
three ran off into the street and
back into the grandmother‘s
yard, chased by Alex and the deceased, who stopped outside the
grandmother’s gate.
[7]
In a moment, the Appellant and Alex came out rushing out of the
grandmother’s
house and gate. The Appellant carried a silver
knife. Miss M[...] warned the grandmother that Appellant was holding
a knife and
their intervention was needed, otherwise they were going
to hurt each other. The grandmother did not respond. The Appellant
approached
the deceased and threatened to stab him. The deceased
called the Appellant a bluff, saying the Appellant was too young, he
would
not stab him. The Appellant stabbed the deceased once
underneath his left hand side nipple. When the Appellant tried to
stab the
deceased again, Miss M[...] intervened trying to stop the
Appellant. The deceased, trying to avert a further attack, picked up
a stone but as he was losing strength, he struggled to throw it at
the Appellant. The Appellant threatened to stab Miss M[...] and
took
a swipe aiming at her stomach but Miss M[...] ducked. When he aimed
at Miss M[...]’s shoulder, she again ducked and
managed to grab
the knife from the Appellant. At that time the grandmother ran back
into her house to fetch water and poured it
on them. The deceased ran
into Miss M[...]’s yard holding his wound and fell near the
door. By the time Miss M[...] got to
him, he had passed on. Miss
M[...] handed the knife over to the police.
[8]
Miss M[...] confirmed under cross examination that she was not aware
of what transpired
prior to Alex coming back running into the house.
She also did not observe any wounds on the Appellant when he was
chasing Alex
into her house and assaulting her, nor did the Appellant
sustain any injuries during the fight that occurred in her presence.
She
denied what was put to her, that the deceased had a knife and
inflicted injuries on the Appellant in the grandmother’s yard.
Miss M[...] insisted that the only person that was carrying a knife
was the Appellant which he came holding out of his grandmother’s
house. She did not agree with Appellant’s version that was put
to her that everything happened at the grandmother’s
yard. She
could also not comment on Appellant’s alleged version of how
the fight started, that V[...], N[...] and T[...]
were sitting
outside the grandmother’s house drinking liquor when Alex
passed by and started insulting N[...] and T[...].
A fight ensued
between V[...] and Alex. Alex was then assisted by 6 other men who
were accompanying him. The Appellant ran into
the grandmother’s
house. Miss M[...] pointed out that the 6 or more men only came after
the deceased had passed on, looking
for V[...] whom the grandmother
had locked inside her house. It was put to her that the Appellant is
the one who ran into the grandmother’s
house and for whom the
men had threatened to burn her house if the grandmother did not let
him out and all this happened before
the stabbing. Miss M[...] was
adamant that it was V[...] and not the Appellant who ran into the
house after the stabbing. It was
also put to her that the deceased
had earlier come out with a knife when they were all standing in
front of the gate. The deceased
stabbed the Appellant three times
upon which the Appellant stabbed the deceased in self- defence. The
Appellant had no intention
of stabbing anybody. He thereafter put the
knife down and ran away. Miss M[...] denied this version of the
Appellant, particularly
that the deceased was armed or that the
Appellant was stabbed by the deceased whilst the deceased was trying
to stab him. She said
the unarmed deceased was stabbed once and she
got between them. The Appellant then tried to stab her twice and she
managed to take
the knife away from him.
[9]
Alex was not available to testify as he had gone back to Zimbabwe.
One N M[…]
whom the state had intended to call as a witness
was made available to the defence and the state closed its case.
[10]
The Appellant’s version is that he was sitting with his
friends, N[...] and T[...] outside
the gate of V[...]’s
grandmother’s house. Alex walked past the gate and swore at
N[...] and T[...]. V[...] stood up
and confronted Alex about his
swearing at the ladies. Alex started fighting with V[...]. The
Appellant stood up with an intention
to separate them and that is
when Alex called his 6 or 7 friends accusing the Appellant and V[...]
of ganging up against him. When
Alex’s friends got there, they,
without asking any questions started fighting with Appellant and
V[...]. The deceased, who
was one of Alex’s 6 friends, took out
a knife and stabbed Appellant on both arms. V[...] ran away and when
Appellant also
tried to run, the group locked him up inside the
grandmother’s yard and he ran into the grandmother’s
house. The grandmother
chased him out as the group was throwing
stones at the house. He took a knife from the table and went out. The
group surrounded
him. The deceased approached him with an intention
to stab him again but he managed to stab the deceased first, in the
neck. He
then put the knife down. The other men fled. Miss M[...]
took the knife. The deceased went to Miss M[...]’s house whilst
he decided to go home. He denied assaulting Miss M[...] or being at
her house.
[11]
The Appellant insisted under cross examination that it all happened
inside the yard of V[...]’s
grandmother. He said he tried to
run away but he was surrounded by the group. He thought coming out
carrying a knife will scare
and make the group run away. Instead the
group surged forward. He could not go back into the house as the
grandmother had chased
him out. He denied that anything was said
between him and the deceased or Miss M[...], except asking the
deceased to stop stabbing
him. It was put to him that he armed
himself with a knife and went out to avenge himself, not try run
away. He denied that or assaulting
Miss M[...], also that the
deceased was unarmed or that the stabbing took place outside the
grandmother’s gate. He alleged
that he did not report his
stabbing by the deceased as he was still confused about what he did.
He could not explain what was put
to him that the only injuries he
complained about when the court suggested that he be assessed and a
J88 obtained was a laceration
on his left arm. The J88 instead refers
to wounds on the left forearm elbow, right middle finger, right index
finger and at the
back of his head. It was confirmed that although
the deceased was supposed to have bled all the way to Miss
M[...]’s
house, no blood was found at the grandmother’s
place where the Appellant alleges the stabbing took place..
[12]
The Appellant closed his case without calling any of the defence
witnesses he mentioned in his
evidence. He also did not call N[...],
notwithstanding that she was made available to the defence.
[13]
Taking into account the totality of the evidence the trial court
found the single state witness,
Ms M[...] to have been a credible
witness whose testimony could be accepted with confidence and not to
have been motivated by anything
as the Appellant was unknown to her.
She was indeed candid and objective about the assaults admitting to
certain things that were
favourable to the Appellant which if she was
motivated by anything against the Appellant she would have a reason
to deny. The court
also found her version on how she got hold of the
knife from the Appellant probable and consistent with the story that
the Appellant
tried to also stab her. The Appellant’s version
that he never saw her in the yard or during the altercation but she
suddenly
came into the grandmother’s yard to pick up the knife
was found improbable.
Appeal
[14]
The Appellant raises the issue of a single witness as the main ground
of his appeal against his conviction.
He contends that the state
relied upon the evidence of Ms M[...], a single witness, when:
[14.1] Miss M[...] did
not witness all the events leading to the stabbing of the deceased.
She specifically could not say why Alex
came back running into the
house and hid behind her back or would the Appellant, Alex and his
grandmother emerge from the grandmother’s
house and with no
apparent reason come back with the Appellant carrying a knife. She
also could not say if the deceased was stabbed
without any
provocation. The only person who has answers is the Appellant;
[14.2] Miss M[...]
paints a picture of Alex and the deceased having done nothing to
start the several fights between V[...]
and them. He argues that the
version of the Appellant is more probable than that of the state’s
single witness;
[14.3] the state
had failed to call witnesses to corroborate the single witness’
evidence, which was accordingly not
satisfactory;
[14.4] the Learned
Magistrate should have found his version to be reasonably possible
true and acquitted him.,
[15]
Conversely, the Respondent argued with reference to
R
v Abdoorham
1954 (3) SA 163
(N) at 165 E & F that the court is entitled to
convict on the evidence of a single witness if it is satisfied beyond
reasonable
doubt that such evidence is true. Furthermore, that the
court may be satisfied that the witness is talking the truth
notwithstanding
that in some respects he is an unsatisfactory
witness; see
S
v Sauls & Others
1981(3) SA 172 at 180 E-G.
Legal
framework
[16]
In
S v Pistorius
2014 (2) SACR 314
(SCA) at [30] Bosielo J for
the court enunciated that:
“
It is a
time-honoured principle that once a trial court has made credibility
findings an appeal court should be deferential and
slow to interfere
therewith unless it is convinced on a conspectus of the evidence that
the trial court was clearly wrong.”
[17]
In
S v Sauls & Others
(
supra
) the court held that:
“
there is no
rule of thumb test or formula to apply when it comes to a
consideration of a credibility of a single witness. The trial
judge
will weigh its evidence and consider its merits and demerits and
having done so will decide whether it is trustworthy and
whether
despite that there are shortcomings, defects or contradictions, he is
satisfied that the truth has been told. The cautionary
rule may be a
guide to a right decision, but it does not mean that the appeal must
succeed, if any criticism it does not matter
how slender, of the
witness’ evidence was well founded. It has been said more than
once that the exercise of caution must
not be allowed to displace the
exercise of common sense.”
See also
S
v Artman & Another
1968 (3) SA 339
(A) at 341C.
[18]
A conviction on the basis of a single witness’ evidence is
therefore possible as provided
in s 208 of the CPA. The evidence
should be given by a competent witness and be clear and satisfactory
in all material respects,
even though the witness may be an
unsatisfactory one, as per
Abdoorham
supra,
and correctly pointed out in Respondent’s heads of argument.
The onus rests on the State to prove the guilt of the Accused
beyond
reasonable doubt, there is no obligation on an accused to convince
the court of his innocence. The court can only convict
if satisfied
that the evidence of the single witness in its clear and satisfactory
form proves the Appellant’s guilt beyond
reasonable, not all,
doubt. it is not said that the evidence should be without criticism,
but the impact of the criticism on the
material aspects determines
whether it is satisfactory.
[19]
The court, in a well- known judgment of
R
v Mokoena
1932 OPD 79
at (80) per De Villiers JP, when referring to an old
section which dealt with uncorroborated evidence of a single witness
held
that:
“
thus the
section ought not to be invoked where, for instance, the witness has
an interest or bias adverse to the accused
,
where he has made a previous inconsistent statement, where he
contradicts himself in the witness box, where he has been found
guilty of an offence involving dishonesty, where he has not had
proper opportunity for observation, etc.”(my emphasis)
[20]
It would therefore be in exceptional cases that an appeal court will
be entitled to interfere
with the trial court’s valuation of
the oral testimony of witnesses. Consequently in order to succeed,
the Appellant will
have to convince the Appeal Court that the trial
court was wrong in accepting the evidence of the state’s single
witness
and rejecting his version, in so far as it was in conflict
with that of the state, as being reasonably possibly true, hence a
reasonable
doubt will not suffice to justify interference with such
findings; see
R
v Dhlumayo and Another
1948 (2) SA 677
(A) at 705-706;
S
v Francis
1991 (1) SACR 198
(A) at 204c-e;
S
v Monyane and Others
2008 (1) SACR 543
(SCA) at para [15].
[21]
Miss M[...], the single witness in
casu
,
testified on all that she saw happen in her presence, including the
circumstances under which the deceased was stabbed and she
was
assaulted, which indicates and proves beyond reasonable doubt that
the Appellant was not acting in self- defence. She indeed
confirmed
to not knowing why Alex came back running or the Appellant and V[...]
were chasing Alex as nobody told her when she asked.
Furthermore, she
pointed out that the Appellant and V[...] continued to assault her in
her house, which assault was not justifiable,
notwithstanding that
they said they intended to hit Alex, as, even when they realised that
they were hitting Miss M[...] instead
of Alex, they continued to hit
her. The court confirmed that she had no interest or bias, adverse to
the Appellant who was unknown
to her. She never contradicted herself
in any material respect. The previous statements made to the police
were confirmed not to
have been read back to her and to have been
brief. She was a satisfactory witness whose evidence the court
correctly found
could be accepted with confidence.
[22]
Furthermore the testimony that after Appellant had sought refuge in
the grandmother’s house where
he was seemingly safe, he armed
himself with a knife, came out and went straight to threaten the
deceased, who seemingly did not
believe that Appellant could stab him
contradicts Appellant’s self-defence allegation. Appellant
stabbed the deceased, notwithstanding
that he knew what was happening
outside and aware that he was not in any imminent danger from which
he could not run away. Appellant
as a result came out of the house
carrying a knife and instigated the attack instead of averting it. He
had intended stabbing the
deceased. The Appellant also took a swipe
at Miss M[...] who had put herself in harm’s way in defence of
the deceased to
try and stop a further attack by the Appellant.
[23]
It is certainly also improbable that the alleged crowd that has
allegedly witnessed the Appellant
stabbing the deceased and baying
for him would have let him go after he has put the knife down.
[24]
It
is therefore clear beyond reasonable doubt that the Appellant’s
allegation of having acted in self-defence, averting an
attack or
being under a threat of an attack by the deceased when he stabbed the
deceased, is not only improbable but false beyond
reasonable doubt.
The attempt by the Appellant to pretend that he also came under
attack and was stabbed during the altercation
was correctly foiled by
the court that had previously noted his complaint and ordered the
injury he claimed to have suffered under
attack by the deceased to be
examined.
The
Appellant was therefore correctly found to have intentionally and
wrongfully killed the deceased and of assaulting Ms M[...].
[25]
The Appeal Court under such circumstances has little space to
manoeuvre, as confirmed in
S
v Mabena
2012
(2) SACR 287
(GNP) that:
“
The
power of an appeal court to interfere on fact with the findings of
the court below is limited. Interference in this regard is
only
permissible where the findings of the court below are vitiated by
misdirection or are patently wrong. I find no basis for
interference
in the present case.…”
[26]
The Appellant has failed to convince the Court that the trial court
was wrong in rejecting his
version as being reasonably possibly true
and therefore there is no justification to interfere with the court a
quo’s finding.
[27]
In the circumstances I therefore make the following order:
1.
The appeal against conviction is dismissed.