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[2021] ZAKZPHC 11
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Mtungwa v S (AR140/2020) [2021] ZAKZPHC 11 (5 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION,
PIETERMARITZBURG
Case
No: AR140/2020
In
the matter between:
AYANDA
MTUNGWA
APPELLANT
vs
THE
STATE
RESPONDENT
ORDER
The following order is granted:
1. The appeal is dismissed and
the conviction and sentence are confirmed.
JUDGMENT
Mossop
AJ (D. Pillay J concurring)
Introduction
[1]
The complainant in this matter was in a love relationship with the
appellant. She
was the mother of a young boy, who at the
relevant time was aged five, but the appellant was not the father of
that child.
The complainant and her child lived in the rural setting
of Nhlababo.
[2]
On 15 May 2018, the complainant suffered an injury to her head. The
State alleges
that the injury was sustained as a consequence of the
appellant striking the complainant on the head with a toy pistol.
This incident
formed the basis of count 1, being a count of assault
with intent to cause grievous bodily harm, that the appellant faced.
He pleaded
not guilty to this count when he appeared before the
Regional Court in Inkanyezi.
[3]
Three months later, on 19 August 2018, the appellant was attacked,
stabbed at least
18 times, and raped in her place of residence. Her
son was also stabbed twice in the head by the person who attached his
mother.
The State alleged that the attacker was the appellant. The
appellant thus faced a second count of rape of the complainant and a
third count of assault with intent to cause grievous bodily harm in
respect of the attack on the young boy. He likewise pleaded
not
guilty to these two counts.
[4]
On 16 January 2020 the appellant was found guilty on all three
charges and was sentenced
to 12 months’ imprisonment on count
1, life imprisonment on count 2 and four years imprisonment on count
3, all of the sentences
to run concurrently with each other. By
virtue of the sentence imposed on count 2, the appellant has an
automatic right of appeal
in terms of the Judicial Matters Amendment
Act 42 of 2013 read with
section 309
of the
Criminal Procedure Act 51
of 1977
. No application for leave to appeal in respect of the
conviction and sentence on counts 1 and 3 was delivered and
accordingly this
appeal involves only the conviction and sentence on
count 2.
The
hearing of the appeal
[5]
This appeal has been set down to be heard during the COVID-19
pandemic when the country
is at level 3 of the national disaster plan
and during which period the Judge President of this Division has
caused certain restrictions
to be imposed relating to the hearing of
trials and appeals. In particular, there are no criminal trials being
permitted to run
and no persons awaiting trial in detention are being
delivered to court. There are a few options available to litigants
involved
in criminal appeals, one of which is to dispense with an
actual or virtual hearing and to have the appeal determined on the
papers.
[6]
The appellant is conducting his own appeal and has delivered heads of
argument drafted
by himself in manuscript. However, having been
convicted in the court
a quo
and sentenced to imprisonment, he
is presently incarcerated and will not be delivered to court for the
appeal because of the restrictions
referred to above.
[7]
As a consequence, it became necessary for this court to ascertain
from the appellant
how he wishes his appeal to be dealt with. At the
request of the court, Legal Aid South Africa telephonically contacted
the prison
at which the appellant is serving his sentence and was
fortunate to be able to speak personally to the appellant. The
appellant
indicated that he desired his appeal to be dealt with on
the papers and further indicated that he did not require legal
representation
or Legal Aid. The court is indebted to Legal Aid South
Africa and their Ms. Zina Annastasiou for their assistance in this
regard.
[8]
Pursuant to the appellant’s wishes, this court will determine
the appellant’s
appeal on the papers.
Background
information
[9]
The love relationship between the complainant and the appellant
commenced in 2017.
By August of 2108, it appears that the
relationship had soured as a consequence of the complainant
developing an affection for
a third party. The appellant had come to
know of the complainant’s infidelity when he saw a message on
her cellular telephone.
The
evidence on count 2
[10]
On the evening of 19 August 2018, the complainant was at home with
her young son at approximately
21h00. She testified that the door to
her dwelling was pushed open and she walked towards it in order to
open it fully. She then
observed the appellant at the door with a
cane knife in one hand and a knife in the other. The electric light
within the dwelling
was on. The appellant walked into the dwelling
and immediately struck the complainant with the cane knife on her
forehead and asked
why she had blocked his calls on her cellular
telephone. By way of an aside, the complainant confirmed that she
had, indeed, blocked
incoming calls to her cellular telephone from
the appellant because he was ‘
annoying
’ her.
[11]
The appellant then commenced stabbing the complainant with the knife,
which he she described
as being an Okapi knife. The first thrust of
the knife was to her chest, just below the left collar bone and she
was then stabbed
repeatedly all over her body: on her back, the sides
of her body, below her breast, her abdomen, her face, her finger on
the right
hand, her legs and even her feet.
[12]
She then collapsed to the floor but the appellant picked her up and
placed her on the bed. Her
young son was on the same bed. The
appellant then took a plastic bank bag and put it over his penis and
raped the complainant.
[13]
Having satisfied himself, the appellant turned his attention to the
complainant’s young
son, who was still on the bed, swore at him
and told him to ‘
Voetsek
’ and then stabbed him
twice on the right side of his head with the knife.
[14]
The appellant then left but the complainant and her son remained in
the dwelling until sunrise,
fearful that he might still be outside.
At daybreak, the young boy ran to the neighbour and summoned help
reporting that he believed
his mother was dead. The police and an
ambulance later attended the scene and the complainant was removed to
hospital. According
to her reckoning, the complainant stated that she
had been stabbed a total of 39 times. According to the doctor who
attended to
her physical wounds and who later testified at the trial,
she was stabbed 18 times.
The
appellant’s defence
[15]
To this detailed version of the complainant, the appellant asserts an
alibi. He claims that he
was not at her dwelling on the evening
concerned. The existence of the alibi was not, however, revealed in
the appellant’s
plea. It was first revealed in the cross
examination of the complainant and was initially formulated as
follows:
‘
On
the date in question he will tell the Court that he was with his
family members and friends, where he sells liquor, in his homestead.’
The
appellant’s legal representative indicated further that one
Sakhele Manqele
would
be called to verify this alibi.
[16]
The alibi explanation was not consistently adhered to by the
appellant. In his evidence in chief
he testified that he waited at
his home for the return of certain people that he had sent to
Stanger. On their arrival, he was
asked to go to his family’s
main homestead where there was to be a meeting concerning a
traditional function that was being
planned and he and the people who
returned from Stanger therefore proceeded to the main homestead. On
route to their ultimate destination,
they stopped at Khalayi store
and purchased some alcohol. They then proceeded onward to the main
homestead. At the main homestead,
he received a telephone call at
around 19h00 or 19h30 from a person he had left at his home. He was
advised that a person had arrived
there looking for him. He then left
and returned home. He indicated that he was at home when the people
who accompanied him to
the main homestead returned at approximately
22h30.
[17]
It appears, however, on his own version that he did not remain at
home after his arrival there
from the main homestead. On his own
version, he left at one stage to go to his neighbour’s house.
He also went back to the
main homestead as he remembered that his
aunt wanted some meat that he sold in town. When he arrived back
there he found that his
aunt was away and he then returned to his
home.
[18]
To make matters more confusing, the appellant indicated that he had
had a braai at his home,
not the main homestead, and at the time of
the alleged rape, 21h00, he was in fact at home with the
complainant’s brother,
one ‘The’. Sakhele Manqele,
also known as ‘The’, ultimately was not called by the
defence to testify as
promised.
The
State witnesses Sokhulu and Mtungwa
[19]
The State did, however, call Nthobisi Sokhulu (henceforth ‘Sokhulu’)
and Skhumbuzo
Mtungwa (henceforth ‘Mtungwa’), two of the
people who had gone with the appellant to the main homestead to
discuss
the planned traditional gathering.
[20]
After Sokhulu appeared to deviate from his sworn statement and a
partial attempt was made to
discredit him as a hostile witness (which
was not followed through to completion), it transpired that Sokhulu
adhered to his sworn
statement that at about 19h00 on the evening in
question he and others had left the main homestead and gone back to
Khalayi store
to purchase more alcohol and that at that stage the
appellant was no longer with them. The group had returned to the
appellant’s
home and Sokhulu had gone to sleep at 20h30 at
which time the appellant was still not present.
[21]
Under cross examination by the appellant’s legal
representative, Sokhulu indicated that
he was intoxicated and could
not recall accurately what had occurred but he agreed with the
appellant’s legal representative
that he had found the
appellant at his home when the group had returned from Khalayi store.
[22]
Mtungwa testified that the appellant had left the main homestead
before the group went to Khalayi
store. He did not ever remember
seeing the appellant again that day, only seeing him the following
morning. Like Sokhulu, Mtungwa
attempted to soften the impact of his
evidence by conceding under cross examination that he did not notice
the appellant at the
appellant’s home, meaning it was possible
that he was there but had not been observed by him.
Alibi
defences
[23]
It is trite that there is no onus on an accused person to establish
his alibi. If the alibi might
reasonably be true then the accused
must be acquitted. Furthermore, the alibi does not have to be
considered in isolation
from other evidence. The correct approach is
to consider the alibi in the light of the totality of the evidence
presented before
court. In
R v Hlongwane
, Holmes JA stated as
follows:
‘
At
the conclusion of the whole case the issues were: (a) whether the
alibi might reasonably be true and (b) whether the denial of
complicity might reasonably be true. An affirmative answer to either
(a) or (b) would mean that the Crown has failed to prove beyond
a
reasonable doubt that the accused was one of the robbers.’
[1]
[24]
Thus, in considering the veracity of the appellant’s alibi it
is necessary that it be weighed
against the totality of the evidence
adduced in the case. The State should have led evidence linking the
appellant to the crime,
which evidence must be sufficient and
credible.
[2]
[25]
In
S v Musiker,
[3]
the Supreme Court of Appeal held that once an alibi has been raised,
it has to be accepted, unless it can be proven that it is
false
beyond a reasonable doubt.
[26]
In
S v Burger and
others
,
[4]
it was held that where an alibi is presented and it contradicts
evidence presented before the court, and the alibi later turns
out to
be a lie, the lie together with the other evidence of the accused as
a whole may point towards his guilt in certain cases.
Single
witnesses
[27]
Section 208
of the
Criminal Procedure Act 51 of 1977
allows that an
accused may be convicted of any offence on the single evidence of any
competent witness.
[28]
There is no magic formula to apply when it comes to the consideration
of the credibility of a
single witness. The trial court should weigh
the evidence of a single witness and consider its merits and having
done so, should
decide whether it is satisfied that the truth has
been told, despite any shortcomings or defects in the evidence.
[5]
Evidence
of identification
[29]
Courts have repeatedly stated that the evidence of identification
must be approached with caution.
There is no doubt that honest
witnesses may make mistakes because of the fallibility of human
observation and therefore all the
factors set out in
S
v Mthethwa
[6]
should be weighed up one against the other in the light of the
totality of the evidence and the probabilities.
The
complainant’s alleged ulterior motive
[30]
As stated previously, the complainant and the appellant were not
strangers to each other. They
had been involved in an intimate
relationship over several months. This renders it unlikely that the
complainant was mistaken about
the identity of her and her son’s
attacker. In addition, the unchallenged evidence of the complainant
was that the electric
light was on at the time of the attack, which
would have assisted the complainant in effecting a reliable
identification.
[31]
Whilst their familiarity with each other renders the likelihood of
mis- identification unlikely,
it also raises the possibility of there
being some other motive for the complainant to falsely implicate the
appellant. Human experience
tells us that the line between love and
hate is often a very thin one.
[32]
When the complainant was cross-examined by the appellant’s
legal representative, the following
was put to her:
‘
He
will tell the court that after this incident he is the one who wanted
to break up with you, or he is the one who broke up with
you.’
[33]
The unexpressed assumption in that question appears to be that the
position taken by the appellant
to terminate the relationship had
fuelled the complainant’s desire to falsely incriminate him.
Indeed, the appellant further
suggested via his legal representative
shortly thereafter in the cross-examination of the complainant that
the complainant had
disclosed to one Nobuhle Gumede that she was:
‘…
planning
something bad against him’.
Nobuhle
Gumede was never called to testify by the defence.
[34]
This version put to the complainant needs to be contrasted with the
version advanced by the appellant
when he testified in chief. He
initially stated that:
‘
She
then also apologised, and she told me that she cannot control herself
when she is there, and she actually asked me again that
I take her
back to stay with me, because whenever she is staying there she
cannot control herself. I told her that I do not have
a problem, but
however, we were going to still talk with her mother about her moving
back with me, …’
[35]
This appears to be at odds with what was put to the complainant by
the appellant’s legal
representative. This impression is
fortified by the further evidence in chief of the appellant when the
following interchange between
his legal representative and him
occurred:
‘
When
did your relationship end with the complainant? --- I’m still
under the impression that we are still together, because
when I ended
the relationship she actually begged for love back, and I agreed.’
[36]
There would accordingly appear to be no basis for the suggestion that
the complainant had contrived
to falsely incriminate him because the
appellant had terminated the relationship.
[37]
Moreover, it was suggested to the appellant by the prosecutor that if
the complainant’s
goal was to achieve the restoration of the
relationship (which according to the appellant had already been
restored) it was not
clear how this could be achieved by falsely
implicating him in a brutal crime which potentially could see him
imprisoned. The appellant
had no explanation for this.
[38]
Given the complainant’s unchallenged evidence that she had
blocked incoming cellular telephone
calls from the appellant because
he was annoying her, his version that she desired the restoration of
the relationship appears
unlikely.
The
appellant’s alibi
[39]
In my view, the appellant’s alibi does not withstand close
scrutiny.
[40]
He himself admitted under cross-examination that there was a period
of time when he ‘
disappeared
’. This fact was not
disclosed when the alibi was first mooted during the cross
examination of the complainant. The following
extract from the
State’s cross examination of the appellant is illuminating:
‘
No,
but they say at some stage you disappeared from them. They are …
[inaudible] --- And I do not think the time that I had
disappeared at
my homestead would be the amount of time that I would go to her
place, because it was just 30 minutes.’
[41]
There was no evidence that the appellant disappeared from his
homestead: the evidence of the
appellant, as well as that of Sokhulu
and Mtungwa, was that the appellant had disappeared from the main
homestead. In addition,
both Sokhulu and Mtungwa’s initial
versions were that the appellant was not at the appellant’s
home when they fell
asleep.
[42]
There is accordingly on the versions of the appellant and those of
Sokhulu and Mtungwa a period
when the appellant’s whereabouts
are unexplained. The complainant has, however, given an explanation
of where the appellant
was.
[43]
An alibi is only as good as its details and the details in the
appellant’s alibi are, in
my view, lacking.
Evaluation
of the evidence
[44]
It is acceptable in evaluating the evidence in its totality to
consider the inherent probabilities.
In
S
v Chabalala,
[7]
Heher AJA stated that the correct approach is to:
‘…
weigh
up all the elements which point towards the guilt of the accused
against all those which are indicative of his innocence,
taking
proper account of inherent strengths and weaknesses, probabilities
and improbabilities on both sides and, having done so,
to decide
whether the balance weighs so heavily in favour of the State as to
exclude any reasonable doubt about the accused’s
guilt.’
[45]
The only credible witness whose evidence could be relied upon on
count 2 was the complainant.
The evidence of her son was not
satisfactory and could not, in my view, be relied upon. She was
therefore a single witness whose
evidence was relied upon to
establish the identity of her attacker. She knew he attacker and the
physical conditions allowed her
ample opportunity to confirm his
identity. The Learned Regional Magistrate accepted her evidence and
she was correct to do so.
Her evidence was satisfactory in all
material respects.
[46]
The appellant was not a good witness. He had a simple version on
count 2 but even with such a
version he found himself in
difficulties, as alluded to previously. His alibi was contrived and
incomplete and had an interlude
where the only person who could
confirm his whereabouts was the appellant himself.
[47]
Finally, the conviction of the appellant on count 3 has some
significance when it comes to the
identification of the person who
attacked the complainant and her son. The Learned Regional Magistrate
found the attacker of the
complainant’s son to be the
appellant. He has not challenged that finding and conviction. That
places the appellant in the
dwelling of the complainant on the
evening in question.
[48]
Considering all the evidence adduced, I am inexorably driven to the
conclusion that the appellant’s
alibi was false, and that his
denial of being at the complainant’s dwelling was also false.
The State led compelling evidence
of his presence in the form of the
testimony of the complainant who unequivocally identified her and her
sons’ attacker.
I accordingly have little doubt that the
Learned Regional Magistrate correctly rejected the appellant’s
alibi and convicted
him.
Sentence
[49]
The attack on the complainant was both brutal and cruel. It was
prolonged and demeaning. Unspeakably,
it was carried out in the
presence of her young son who had the horrific experience of seeing
his mother stabbed multiple times
and raped.
[50]
The incident was rendered more brutal in my view by the fact that the
complainant’s five
year old son, whose only crime was to
witness the unspeakable brutality visited upon his mother, was
himself a victim of the appellant’s
cruelty. To stab a five
year old child twice in the head requires a special degree of
callousness.
[51]
In my view, it matters not a jot that the complainant believed that
she had been stabbed 39 times
whereas the medical doctor who examined
her wounds said that she had suffered only 18 stab wounds. The doctor
described the wounds
that she sustained as life threatening. There is
thus no doubt that the complainant suffered grievous bodily harm as
contemplated
by the
Criminal Law Amendment Act 105 of 1997
.
[52]
The appellant clearly believed he had done enough to kill the
complainant. After he was finished,
he informed the complainant’s
young son that:
‘
If
anyone asked who killed your mother, you must say it is Spa.’
[53]
That the complainant survived is remarkable. As Advocate Harrison who
prepared the respondent’s
heads of argument stated, whether the
complainant was stabbed 18 times or 39 times, she would in all
likelihood be traumatised
by this terrible ordeal.
[54]
Given the unchallenged conviction on count 1, there is an established
chain of violence perpetrated
by the appellant against the
complainant. It is precisely such wanton acts of violence against
women in the sanctity of their homes
that society requires to be
stopped.
[55]
In my view, the only possible sentence that the Learned Regional
Magistrate could impose was
the minimum sentence prescribed. She did
so and she was, in my view, correct in doing so.
Conclusion
[56]
Accordingly, I propose that the appeal be dismissed and the
conviction and sentence be confirmed.
Mossop
AJ
Acting
Judge of the High Court of KwaZulu-Natal
I
agree and it is so ordered.
D.
Pillay J
Judge
of the High Court of KwaZulu-Natal
APPEARANCES
NB:
The country is in lockdown level 3 due to Covid-19.
With
the consent of the parties, the matter was dealt with on the papers
and judgment was handed down electronically and emailed
the parties.
Counsel
for the appellant
: The
appellant conducted
his own appeal.
Counsel
for the respondent
:
Advocate Xaba
DPP Pietermaritzburg
RXaba@npa.gov.za
Date
of Hearing
: 5
February 2021
Date
of Judgment
: 5
February 2021
[1]
1959
(3) SA 337
(A) at 339C-D.
[2]
Tshiki
v
The
State
[2020] ZASCA 92
(18 August 2020) at para 33.
[3]
2013
(1) SACR 517
(SCA) at para 15-16.
[4]
2010 (2) SACR 1
(SCA) at para 30.
[5]
S
v
Sauls
1981 (3) SA 172
(AD) at 180E-G.
[6]
1972
(3) SA 766
(AD) at 768A-C.
[7]
2003
(1) SACR 134
(SCA) at para 15.