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[2021] ZAKZPHC 73
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Khuboni v S (AR315/2020) [2021] ZAKZPHC 73; 2022 (1) SACR 470 (KZP) (20 August 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR 315/2020
In
the matter between:
FIKANI
PROTAS
KHUBONI APPELLANT
and
THE
STATE RESPONDENT
ORDER
On
appeal from:
Ixopo Regional Court
(sitting as court of first instance):
(a)
The appeal is upheld
and the convictions and sentences of the
appellant on all the counts, being those of murder, attempted murder
and kidnapping are
set aside;
(b) A
copy of this judgment is to be sent to the Regional Court President
of KwaZulu-Natal by the Registrar of
this court.
JUDGMENT
Mossop
AJ (Bedderson J concurring):
[1] This
appeal, unfortunately, has become focussed on the quality of the
judgment delivered by the regional magistrate
of Ixopo. The appellant
was one of four people who stood trial in the Ixopo Regional Court on
a charge of murder, a charge of attempted
murder, a charge of public
violence and two charges of kidnapping. The appellant was granted a
discharge at the end of the State
case in respect of one of the
counts of kidnapping. At the end of the trial, he was acquitted on
the charge of public violence
but he was convicted on the count of
murder, the count of attempted murder and the surviving count of
kidnapping. For the purpose
of sentence, the counts of murder and
kidnapping were taken as one and he was committed to prison for 15
years. On the attempted
murder count he was sentenced to 10 years
imprisonment. The sentences were not ordered to run concurrently and
accordingly he was
condemned to an effective 25 years in prison.
[2] The
appellant was granted leave to appeal in the court a quo against
convictions and sentences. He is the only
one of the four accused who
is before us. The appellant was represented on appeal by Miss Franke
and the State was represented
by Mr Gula. They are both thanked for
their helpful submissions.
[3] The
events that led to the conviction of the appellant occurred at the
Mahehle location, near Ixopo on 28 December
2018. Essentially, the
events relate to an incident of mob justice. It was believed by the
community of that location that one
Khehla Mokoena, the deceased in
the murder charge, referred to hereafter as ‘the deceased’,
had previously been involved
in a murder himself. He was fetched from
his place of residence, beaten, questioned, and as a consequence of
what he said, Mr Sphesihle
Mbhele (Mr Mbhele) was fetched from his
abode. Mr Mbhele was the victim in the attempted murder charge. Both
the deceased and Mr
Mbhele were thereafter beaten further and the
deceased was ultimately killed. Mr Mbhele suffered extensive
injuries, but survived,
and was subsequently hospitalised for nine
months.
[4] In
convicting the appellant, the regional magistrate briefly summarised
the evidence he heard from the State
witnesses. The emphasis here is
on the word ‘briefly’: the summary of all the evidence
was dealt with in approximately
a page of the transcript of evidence.
The regional magistrate dealt with all the evidence of the accused
and their witnesses in
one sentence:
‘
They admitted they
were on the scene, but each denied assaulting the deceased or
complainant. That was the evidence for the defence.’
[5] The
regional magistrate after briefly considering the nature of the onus
on the State, went on to state the
following:
‘
The Court is
satisfied that all four State witnesses were good, reliable
witnesses, that the Court can rely on their identification
of the
perpetrators.
I also find honesty in
their evidence in that they said number 4 was there, but he was not
part of it. They could easily have lied
and said he also assaulted
the people.
Therefore the Court
accepts evidence of the four State witnesses as the truth.
I find the accused
versions as false.’
[6] There
was no attempt made whatsoever to consider the appellant’s
version or the version of his witness
or to provide the reasons
behind the conclusion reached regarding the trustworthiness of the
State witnesses evidence.
[7] I
have a fundamental difficulty with the regional magistrate’s
conclusion that the evidence of the State
witnesses was the truth and
could accordingly be accepted by him because the State witnesses did
not all adhere to a single version.
There were contradictions in the
State case that needed to be explained and dealt with in the judgment
of the court:
(a) The
first State witness, Mr David Xaba (Mr Xaba) was the brother of the
deceased in the murder
count. He had been present at all material
times and had observed the death of his brother and the assault of Mr
Mbhele. As regards
the assault of Mr Mbhele, the following exchange
occurred when Mr Xaba was being cross-examined:
‘
Who assaulted him?
--- As I have said, Your Worship, I will not be able to explain as to
who did what, because I do not know their
names.
Not any of the accused?
--- No, Your Worship, no one from the accused before Court.’
However, the victim of
that vicious assault, Mr Mbhele, stated that the appellant had struck
him with a knobbed stick. No attempt
was made by the court to analyse
and explain this difference. Obviously, both versions cannot be the
truth and the court was not
in a position to accept both versions. In
accepting the truthfulness of all the State witnesses, this is what
the regional magistrate
did.
(b) Mr
Xaba went on to state in cross examination that the appellant had
assaulted the deceased in the presence
of the station commander of
the South African Police Services at Creighton, who had come to the
scene. However, that station commander,
Lieutenant-Colonel Dwaga, who
gave evidence, indicated that he would not say that any of the
accused hit the deceased or Mr Mbhele;
(c) Beatrice
Dlamini (Ms Dlamini) was the sister of the deceased in the murder
count. For some unexplained
reason, the regional magistrate referred
to her as ‘Patrick Dlamini’ in his judgment. Ms Dlamini
testified that the
appellant carried ‘something like a stick’.
When the appellant testified, he pointed out that other witnesses had
said
that he carried a knobbed stick. He was correct in this regard
(the appellant’s version was that he did not carry either a
knobbed stick or a stick). The regional magistrate intervened and
said
‘
There’s no
difference. Next question.’
With
due respect, there is a difference. The previous witnesses had been
clear that it was a knobbed stick. This difference needed
to be
explored and considered by the regional magistrate.
[8] Besides
these external contradictions, there was also a significant internal
contradiction in the evidence
of Mr Xaba. In his evidence in chief,
he testified that the appellant had struck the deceased, his brother,
with a knobbed stick.
However, when cross examined, he stated as
follows to a question put to him by accused two’s legal
representative:
‘
Okay, you agree
with me that those people who physically assaulted your brother
leading to his death, they are not before court,
they are still out
there? --- That is correct, Your Worship, they are not here.’
No
attempt was made by the court to explain how it dealt with this
aspect of the evidence of Mr Xaba or how, having accepted his
evidence, he then found the appellant guilty on the count of murder.
[9] As
regards the conviction of the appellant by the regional magistrate on
the remaining charge of kidnapping,
being the kidnapping of the
deceased, there was not a scintilla of evidence that indicated that
the appellant was ever present
at, or involved in, the kidnapping of
the deceased. As Mr Xaba explained, the appellant made his appearance
at the hall, where
the deceased was already tied up. He could not
have been involved in the taking of the deceased from Mr Xaba’s
home nor his
removal from the granny’s home to the hall. He
ought to have been acquitted on that count at the stage that he
applied for
his discharge in terms of
section 174
of the
Criminal
Procedure Act, 51 of 1977
.
[10] In
rejecting the appellant’s evidence, the regional magistrate
ignored his evidence that he had been
at a traditional marriage
ceremony on the day in question and that when he arrived back at the
area of his homestead he noticed
a crowd over at the hall. Having
alighted from his transport, the appellant was carrying a bag and
some plastic bags. Spying three
boys from his area, he roped them in
to help carry his bags to his homestead. No disrespect is meant by
the use of the word ‘boys’:
this is how they were
described in the transcript of evidence and no mention was made of
their respective ages. They may well thus
have been boys. The boys
were named by the appellant and one of them, Siyanda Radebe, was
later called to give evidence on behalf
of the appellant. Someone
told them that there were people at the hall because a young man had
been caught who had killed a girl
that was pregnant. The appellant
and his helpers went to the appellant’s homestead, left the
parcels on his bed and repaired
to the hall to see what was going on
there.
[11] At
the hall they found the deceased ‘sleeping’ in the middle
of the road, as the appellant described
it, and his wrists were tied
with rope. The appellant knew the deceased as he had previously gone
fishing with him. He could see
that the deceased was injured and he
went and spoke to him, asking him if he had been involved in the
killing of the young lady.
The deceased allegedly admitted that he
had and that he had been drunk and with Mr Mbhele when the young lady
was killed. Mr Mbhele
was then fetched and brought to the hall. Mr
Mbhele was asked whether he had been involved in the death of the
young lady but denied
that he had been. He was then assaulted. The
appellant, on his version, allegedly tried to intervene and stop the
assault. He then
told the boys who had gone with him to the scene
that should leave and they all withdrew. He denied striking either
the deceased
or Mr Mbhele with a knobbed stick.
[12] The
appellant was hardly cross examined by the State, the cross
examination filling just under two and half
pages of the transcript
of evidence.
[13] Siyanda
Radebe testified on behalf of the appellant. He confirmed the
evidence of the appellant in all material
respects, including that
the appellant spoke to the deceased while he lay on the ground and
that the appellant did not carry anything
and therefore did not
assault either the deceased or Mr Mbhele.
[14] Again,
as with the appellant, Mr Radebe was barely cross examined by the
State, the cross examination filling
less than one and half pages of
the transcript of evidence.
[15] The
regional magistrate indicated in his judgment that it was the court’s
duty to weigh up the evidence
of the accused persons. He was
undoubtedly correct in this regard. In saying so, he must have
included a weighing up of the evidence
of the appellant and his
witness. Having acknowledge that such evidence had to be considered
and evaluated, the regional magistrate
then did not do that as his
‘weighing up’ merely consisted of him pondering on the
likelihood of the State witnesses
knowing who had carried out the
assaults, especially Mr Mbhele who had been close to his assailants.
[16]
It
is trite that the State is required to establish the guilt of an
accused person beyond reasonable doubt. The accused person is
entitled to be acquitted if there is a reasonable possibility that
his version may be true. In dealing with the relationship between
these two concepts, the court in In
S
v Van der Meyden
,
[1]
explained that:
‘
These are not
separate and independent tests, but the expression of the same
test when viewed from opposite perspectives. In
order to convict, the
evidence must establish the guilt of the accused beyond reasonable
doubt, which will be so only if there
is at the same time no
reasonable possibility that an innocent explanation which has been
put forward might be true. The two are
inseparable, each being the
logical corollary of the other. In whichever form the test is
expressed, it must be satisfied upon
a consideration of all the
evidence. A court does not look at the evidence implicating the
accused in isolation in order to
determine whether there is proof
beyond reasonable doubt, and so too does it not look at the
exculpatory evidence in isolation
in order to determine whether it is
reasonably possible that it might be true.’
[17] It
is also trite that a conviction can only follow upon a proper
evaluation of the evidence led before the
court. Only then can it be
concluded that there exists a prima facie case for an accused person
to answer. The failure by the regional
magistrate to properly
evaluate the evidence adduced in the State case but to accept it all,
including the contradictions previously
alluded to, and his failure
to consider the appellant’s evidence at all but to nonetheless
reject, places this court in an
invidious position. No specific
credibility findings were made by the regional magistrate. This is
not surprising because in the
absence of a proper evaluation of all
the evidence, no credibility finding can be made.
[18]
It
is not sufficient that a court comes to a decision: the reasons for
that decision must be articulated as well. In
Schoonwinkel
v Swart’s Trustee
,
[2]
De Villiers JP stated the following:
‘
This court, as a
Court of appeal, expects the court below not only to give its
findings on the facts, but also its reasons for those
findings. It is
not sufficient for a magistrate to say, “I believe
this
witness, and I did not believe
that
witness”. The Court
of appeal expects the magistrate, when he finds that he cannot
believe a witness, to state his reasons
why he does not believe him.
If the reasons are, because of inherent improbabilities, or because
of contradictions in the evidence
of the witness, or because of his
being contradicted by more trustworthy witnesses, the Court expects
the magistrate to say so.
If the reason is the demeanour of the
witness, the Court expects the magistrate to say that; and
particularly in the latter case
the court will not lightly upset the
magistrate’s finding on such a point.’
Whilst
this dictum was intended for a civil case it is equally applicable to
a criminal case.
[19]
In
S v
Singh
,
[3]
Leon J opined as follows:
‘
Because this is
not the first time that one has been faced on appeal with this kind
of situation, it would perhaps be wise to repeat
once again how a
court ought to approach a criminal case on fact where there is a
conflict of fact between the evidence of the
State witnesses and that
of an accused. It is quite impermissible to approach such a case
thus: because the court is satisfied
as to the reliability and the
credibility of the state witnesses that, therefore, the defence
witnesses, including the accused
must be rejected. The proper
approach in a case such as this is for the court to apply its mind
not only to the merits and demerits
of the State and defence
witnesses but also to the probabilities of the case. It is only after
so applying its mind that the court
would be justified in reaching a
conclusion as to whether the guilt of an accused has been established
beyond reasonable doubt.
The best indication that a court has applied
its mind in the proper manner in the above-mentioned example is to be
found in its
reasons for judgement including its reasons for the
acceptance and rejection of the respective witnesses.’
[20]
A
trial court's failure to substantiate the judgment and engage in a
proper evaluation of the evidence infringes upon the appellant’s
right to a fair trial, which includes the right to have his appeal
properly adjudicated on by a higher court. In
S
v
Molawa; S
v
Mpengesi,
[4]
the
court stated:
‘
There is
indeed a further compelling reason why reasons for
judgement ought to be furnished. The right to appeal or review
is entrenched constitutionally for every accused person. In this
regard
s35(3)(O)
of the Constitution of the Republic of South Africa,
1996, provides as follows:
“
(3) Every accused
person has the right to a fair trial, which includes the right –
…
(o) of appeal to, or
review by, a higher court”
These are certainly
important rights that should not be overlooked’.
[21]
In
addition to the aforegoing,
section 93
ter
(3)(e) of the Magistrates’ Courts Act
[5]
provides as follows:
‘
It shall be
incumbent on the court to give reasons for its decision or finding on
any matter made paragraph (d).’
[22]
It
appears as if the regional magistrate acted in the exact manner
cautioned against in
Singh
.
[6]
He accepted the State’s evidence and therefore rejected the
appellant’s evidence without considering its merits. The
judgment appealed against gives us no assurance that the court gave
due consideration to the matter and did not act arbitrarily.
The
conviction on the count of kidnapping is particularly worrying for
the reasons previously explained. We are therefore placed
at a
distinct disadvantage. We do not know how the regional magistrate
reconciled the differences in the State case or why he disbelieved
the appellant and his witness. It follows that we do not know on
which facts the regional magistrate based his decision to come
to a
finding that the appellant’s guilt had been established beyond
a reasonable doubt.
[23] The
regional magistrate had the opportunity of observing all the
witnesses and their demeanour when giving
evidence. Demeanour is an
important factor in weighing up the credibility of a witness.
Demeanour was not addressed at all by the
regional magistrate and
while we know what decision he came to, his reasons for doing so
remain unknown. We do not have that advantage
and the judgment does
not assist us in any way in this regard.
[24] However,
after considering all the evidence placed before us, it seems to me
that the appellant’s evidence
and that of his witness could
reasonably possibly have been true. Certainly, there were no
discrepancies in the evidence of the
appellant and that of his
witness, Mr Radebe. The ineffectual cross examination of the
appellant and his witness in no way undermined
the appellant’s
version. In my view, the State did not prove the guilt of the
appellant beyond reasonable doubt on any of
the counts that he faced.
[25]
One
final aspect of the matter needs to be mentioned. It is implicit in
our constitutional dispensation that all persons have inherent
human
dignity.
[7]
This includes those
who come before a court, be they witnesses or accused persons. Such
persons are to be treated with dignity
by a judicial officer. All are
human beings and are entitled to be treated politely and
respectfully. It is so that very often
accused persons will impress
upon a court to accept a fanciful defence in order to escape
conviction. When faced with such versions,
it is incumbent upon the
judicial officer to maintain his equanimity and continue to treat the
accused with respect, even if he
does not believe or accept the
accused’s version. Unfortunately, it seems to me that this did
not occur in this matter. I
mention the following instances harvested
from the transcript of evidence:
(a) Accused
one had just been cross examined when the following exchange occurred
between the court and him:
‘
COURT
‘
Who assaulted them? --- Assaulted who?
Sir, don’t make
a fool of me here
. We are talking about the deceased and a second
complainant --- I don’t know because I am saying that I did not
see.’
(b) Later
with the same accused, the court asked the following:
‘
And why are only
the four of you pointed out? --- I cannot explain that, Your Worship,
because sometimes it happens that a person
would harbour some hate
towards you.
Ag please, don’t
come up with that type of rubbish
. Thank you. Stand back.’
(c) After
the appellant had been cross-examined, the court engaged in the
following exchange with him:
‘
Oh? Did you call
an ambulance? --- I was not able to call an ambulance
You see how ridiculous
your answer is
? You contradict yourself in the very next
question.’
[My underlining]
[26] These
are injudicious remarks that should be made to an accused person by a
presiding officer. They display
an unnecessary aggression towards the
accused and give the impression that the court has already come to a
decision that the accused
is guilty. This impression must not be
created and exchanges of this kind must not be repeated.
[27] I
would accordingly propose the following order:
(a) The
appeal is upheld and the convictions and sentences of the appellant
on all the counts, being those
of murder, attempted murder and
kidnapping are set aside;
(b) That
a copy of this judgment be sent to the Regional Court President of
KwaZulu-Natal by the Registrar
of this court.
Mossop
AJ
I
agree and it is so ordered.
Bedderson
J
APPEARANCES
Counsel
for the appellant: Advocate
S. Franke
Instructed
by:
Tomlinson
Mnguni James
12
Montrose Park Boulevard
Pietermaritzburg
Counsel
for the respondent: Advocate
M. Gula
Instructed
by: National
Prosecuting Authority
325
Pietermaritz Street
Pietermaritzburg
Date of
Hearing: 20
August 2021
Date of
Judgment: 20
August 2021
[1]
S
v Van der Meyden
1999 (2) SA 79
(W) at 80I-81B.
[2]
1911
TPD 397
at 401.
[3]
1975
(1) SA 227
(N) at 228.
[4]
2011 (1) SACR 350 (GSJ) at para 15.
[5]
Act 32 of 1944.
[6]
1975
(1) SA 227
(N) at 228.
[7]
Section
10 of the Constitution of the Republic of South Africa, 1996.