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[2021] ZAGPJHC 509
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Ndlovu v S (A10/2021) [2021] ZAGPJHC 509 (13 August 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: A10/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
REVISED
.
13/8/2021
In
the matter between
:
NDLOVU,
LINDA
Appellant
And
THE
STATE
Respondent
JUDGEMENT
CORAM:
MONAMA, J and MOOSA AJ
MOOSA
AJ (MONAMA, J concurring)
1.
This is an appeal against conviction and
sentence. The appellant was tried and convicted in the Regional
Court, sitting at Protea,
on the charges of attempted murder and
murder as defined in
Section 51(2)
of the
Criminal Law Amendment Act
105 of 1997
and Schedule 2 of the
Criminal Law Amendment Act 105 of
1997
.
2.
The accused was found guilty of unlawfully
and intentionally attempting to kill Zwelithini Nzimande (Nzimande)
by stabbing him with
a knife and unlawfully and intentionally killing
Doctor Mondli Noyi, (the deceased) by stabbing him with an unknown
object/ or
knife on the 18 February 2017 near Nancefield Hostel in
Gauteng.
3.
The appellant was legally represented and
the magistrate was assisted during the trial by two assessors in
terms of
section 93ter
(1) of the Magistrates Court Acts 32 of 1944.
4.
The appellant entered a plea of not guilty
and exercised his right to remain silent.
5.
After the closure of the State’s case
on 1 February, the appellant brought an application for his discharge
in terms of
section 174
of the
Criminal Procedure Act 51 of 1977
,
this application was dismissed.
6.
The
Appellant
was
convicted as charged on 7 March 2018 as follows:
6.1
Count 1: 3 years imprisonment
6.2
Count 2: 12 years imprisonment
7.
The
appellant
successfully lodged an application for
leave to appeal against his conviction and sentence on 4 September
2020 this included an
application for condonation for the late filing
of the application for leave.
ISSUES IN DISPUTE AD
CONVICTION
8.
The
appellant
raised two issues which must be decided on.
The first is whether the Court can rely on the evidence of as single
witness, Mr. Nzimande
on the events which occurred in the shack with
regards to his stabbing. While the second is whether the court can
rely on the hearsay
evidence of Mr. Nzimande as regarding the words
told to him by the deceased.
The Single Witness
9.
Section 208
of the CPA reads that any
accused can be convicted of any offence on the single evidence of a
competent witness.
10.
The court must have regard to the
cautionary rules when considering the evidence of a single witness
.
The
trial judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether it is trustworthy
and whether despite the fact that there are shortcomings or defects
or contradictions in the testimony, he is satisfied that the
truth
has been told
.
S v Sauls and Others
[1]
Appellant
’
s evidence:
11.
Mr.
Nzimande contradicted his evidence in cross-examination. He stated
that there had never been an altercation with the
appellant,
after
having previously testified that he had been stabbed on his arm, by
the
Appellant,
the
previous August.
[2]
12.
The
appellant
denies
that he entered the shack with a knife that he stabbed Mr. Nzimande,
on his version Mr. Nzimande scratched his finger with
the knife when
the
appellant
tried
to
take the knife from him and it fell on the road
[3]
13.
MS
Dlamini testified that the
appellant
entered
the shack with a knife at the stage when they were trying to contact
the ambulance for Mroza. She then fled the premises.
[4]
14.
The
incident occurred between 20h30 and 21h00 in the shack the size of a
single garage. No evidence was lead on the visibility inside
the
shack.
[5]
15.
The
shack was a smallish room about four by five meters and there were
between ten (10) perhaps twenty (20) people present in and
outside
the room.
[6]
16.
The
appellant
submitted that the state did not prove its
case beyond a reasonable doubt on count 1.
Respondent’s
evidence:
17.
Mr.
Nzimande’s contradiction was not considered by the Court in its
judgement to render his evidence non-compliant with the
cautionary
rule nor was it found to be a reason to doubt his credibility.
[7]
18.
The
Court a quo found Mr. Nzimande’s evidence to be, ‘satisfactory
in every material respect’.
[8]
19.
It was further questioned how 16/20 people
were in the shack and, how no one could have seen the stabbing?
20.
Contradictions
per se do not lead to the rejection of a witness evidence. Nicholas J
observed that they may simply indicative of
an error.
S
v Oosthuizen
[9]
21.
Not
every error made by a witness affects his credibility. In each case
the trier of a fact must make an evaluation, taking into
account such
matters as the nature of the contradictions, their number and
importance and their bearing on other parts of the witness’
evidence.
S
v Oosthuizen
[10]
,
S
v Mkohle
[11]
and
S
v Pretorius
[12]
22.
Contradictory
versions must be considered and evaluated on a holistic basis. The
circumstances under which the versions made, the
proven reasons for
contractions with regard to the reliability and credibility of the
witness, the question whether the witness
was given a sufficient
opportunity to explain the contradictions - and the quality of the
explanations - and the connection between
contradictions and the rest
of the witness’ evidence, amongst other factors, are to be
taken into consideration and weighed
up.
S
v Jochems
[13]
Hearsay Evidence
Appellant
’
s
evidence:
23.
The
issue here is whether the court may rely in the hearsay evidence
presented by Mr. Nzimande pertaining to the fact that the deceased,
told him inside the shack as he was exiting that, “Willie”
has stabbed him and that he needed help.
[14]
24.
According
to the
appellant
this
evidence is inadmissible and no one had witnessed the stabbing of the
deceased. Further Mr. Nzimande’s evidence, that
he turned
around and saw the
appellant
following
the deceased with a knife and saw blood on the deceased again
amounted to the evidence of a single witness and should
therefore be
considered with caution.
[15]
25.
The
appellant
in
its heads of argument emphasized that there was no evidence led as to
the visibility inside the shack at the time when Mr. Nzimande
became
aware that the deceased had been stabbed.
26.
Further
that there were 7 (seven) persons attempting to exit the shack at the
time that the deceased was stabbed.
[16]
27.
It
is on the aforementioned issues that the
appellant
submitted
the court a quo had erred in its finding that the
appellant
stabbed
the deceased.
[17]
Respondent’s
evidence:
28.
The
court a quo dealt with hearsay evidence as follows: “The
complainant made a spontaneous exclamation, it is not allowed
for the
truth of the contents thereof, he said, ‘Willie stabbed me.’
But from that exclamation, coupled with the fact
that the accused was
the only person behind him in possession of a knife, there is only
one possible inference that can be drawn
and that is that the accused
stabbed him.”
[18]
29.
The
respondent submitted that the reasoning of the court a quo in this
regard cannot be faulted. The Court did not accept this exclamation
as the truth, but used the fact as a factor to be considered together
with all the other evidence in decoding whether by way of
inferential
reasoning it can be accepted that the appellant stabbed the
deceased.
[19]
30.
The following prerequisites were set to
establish whether the state has proved its case beyond reasonable
doubt where the accused
is implicated in the commission of a crime by
means of circumstantial evidence:
30.1
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, the inference cannot be drawn.
30.2
The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If
they do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.
S
v Blom
[20]
31.
“
I
bear in mind in this regard that circumstantial evidence should never
be approached in a piecemeal fashion. The court should not
subject
each individual piece of evidence to a consideration of whether it
excludes the reasonable possibility that the explanation
given by an
accused is true. The evidence needs to be considered in its
totality.”
Lachman
v S
.
[21]
32.
Justice
Navsa held: “A conspectus of all the evidence is required.
Evidence that is reliable should be weighed alongside such
evidence
as may found to be false. Independently verifiable evidence, if any,
should be weighed to see if it supports any of the
evidence tendered.
In considering whether evidence is reliable, the quality of that
evidence must of necessity be evaluated, as
must corroborative
evidence, if any. Evidence, of course, must be evaluated against the
onus on any particular issue or in respect
of the case in its
entirety. The compartmentalized and fragmented approach of the
magistrate is illogical and wrong.”
S
v Trainor
.
[22]
33.
The
respondent submitted that the state did prove its case against the
appellant beyond reasonable doubt and that there is no reasonable
provision for the inference that the deceased was stabbed by anyone
else without it being seen.
[23]
34.
It
is worth noting at this stage that the State must prove its case
beyond reasonable doubt and if the
Appellant
’
s
version is only reasonably possibly true, he is entitled to his
acquittal.
S
v Trickett
.
[24]
35.
The
Court must also apply its mind not only to the merits or demerits of
the State and the defence witnesses but also the probabilities
of the
case.
S
v Singh
[25]
,
S
v
Guess
[26]
,
S
v Mhlongo
[27]
36.
In evaluating the evidence presented, I am
of the view that the evidence in the matter cannot be decided in a
piecemeal fashion
but all the evidence must be considered in
totality.
37.
The appellant has provided no factual
evidence why this court should deviate from the reasoning of the
court a quo, the circumstantial
evidence outlined above by the
respondent is sufficient to establish the guilt of the appellant
beyond reasonable doubt. I find
no misdirection by the court a quo
for relying on this evidence to convict the appellant. In assessing
the evidence in its totality,
in my view the State has discharged the
onus of proving that the appellant had committed
attempted
murder and murder as defined in
Section 51(2)
of the
Criminal Law
Amendment Act 105 of 1997
and Schedule 2 of the
Criminal Law
Amendment Act 105 of 1997
.
38.
In the premise, the appeal against
conviction stands to fail.
39.
I
now turn to the question of sentence. The imposition of sentence is
in the discretion of the trial court and the court of appeal
must not
interfere with the discretion for frivolous reasons.
S
v Rabie, S v De Oliveira, S v Kgosimore
[28]
40.
The
court a quo considered the triad in respect of sentence to wit, the
personal circumstances of the appellant, the seriousness
of the crime
and the interests of the community.
[29]
41.
In
this matter the Minimum Sentence Act 105 of 1997 finds application as
(Count 2). The specified sentences are not to be departed
from
lightly and for flimsy reasons. The Legislature has however,
deliberately left it to the courts to decide whether the
circumstances
of any particular case calls for a departure from the
prescribed sentence.
S
v Malgas
[30]
42.
In this matter the court a quo did deviate
from the prescribed minimum sentence and imposed a sentence of 12
years imprisonment
on count 2 instead of the prescribed 15 years
imprisonment.
43.
The effective sentence being of 15-year
imprisonment if the 3 years imprisonment on count 1 is added.
44.
The court a quo considered all the
aggravating and mitigating factors when it considered an appropriate
and just sentence and the
sentence imposed by the court a quo does
not induce a sense of shock and is not disproportionate to all the
factors considered.
I align myself with the reasoning of the court a
quo. The appeal against sentence stands to be dismissed.
45.
In the result, I propose the following
order be made:
1.
The appeal against both conviction
and sentence are dismissed.
2.
The conviction for attempted murder and
murder is confirmed
3.
The 15 years imprisonment in respect of the
appellant is confirmed
T
MOOSA AJ
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered
MONAMA
J
JUDGE
OF THE HIGH COURT
COUNSEL
FOR THE APPELLANT:
S
Simpson – Legal Aid SA
COUNSEL
FOR THE RESPONDENT:
D
Barnard – Senior State Advocate
Office of the Director of
Public Prosecutions, Gauteng
Date
of hearing: 10 August 2021
Date
of Judgement: 13 August 2021
[1]
S
vs Sauls and others
1981
(3) SA 172
(a) at 180 E-H
[2]
Record:
page 36, lines 15-1 - page 62, lines 9-14
[3]
Record:
page 102, lines 16-23
[4]
Record
page 72, lines 3-5, 14
[5]
Record
page 55, lines 17-20, page 105, lines 2-20
[6]
(C
101- line 13,14)
[7]
Record:
page 133, line 21
[8]
Record
page 135, line 2
[9]
S
v Oosthuizen
1982 (3) SA 571
at 576 – B-C
[10]
S
v Oosthuizen
1982 (3) SA 571
at 576 – G - H
[11]
S
v Mkhole 1990(1) SACR 95 (A) at 98f-g
[12]
S
v Pretorius 2014(2) SACR 314 (SCA) at para 27
[13]
S
v Jochems
1991 SACR 208
(A) at 211f-j
[14]
Record:
page 44, lines 22-25
[15]
Record:
page 44, lines 22-25 and page 45, lines 1-8
[16]
Record:
page 44, line 14
[17]
Page
9. 9.26 A HOA)
[18]
Page
12, 36 – R HOA)
[19]
Page
12, 37 -R HOA)
[20]
S
v Blom 1939 (AD) 188
[21]
Lachman
v S 2010 (3) ALL SA 483 (SCA)
[22]
S
v Trainor 2003 (1) SACR 35 (SCA)
[23]
Page
17, 48,49 – R HOA
[24]
S
v Trickett 1973 (3) SA 526 (T)
[25]
S
v Singh 1975 (1) SA 227 (N)
[26]
S
V Guess 1976 (4) SA 715 (A)
[27]
S
V Mhlongo 1991 (2) SACR 207 (A)
[28]
S
v Rabie
1975 (2) SA 537
A at 857 D-E
S
v De Oliveira
1993 (2) SACR 59
A at 667
S
v Kgosimore 1999 (2) SACR 238 (SCA)
[29]
Record:
page 143 line 2 – page 145 line 20
[30]
S
v Malgas
2001 (1) SACR 469
(SCA)