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[2021] ZAKZPHC 83
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Qayi v S (AR228/2019) [2021] ZAKZPHC 83 (14 September 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE
NO: AR228/2019
In
the matter between:
ZANDISILE
QAYI APPELLANT
and
THE
STATE RESPONDENT
ORDER
1. The
appeal in respect of the appellant's conviction for assault with
intent to do grievously
bodily harm is dismissed.
2. The
appeal in respect of the appellant's conviction for the offence of
murder is upheld and
the appellant's conviction and sentence in
respect of this charge are set aside.
JUDGMENT
Delivered
on 14 September 2021
Gani AJ et Mngadi J
(concurring)
[1] On
23 October 2018 the appellant was convicted of two offences, assault
with the intent to do grievous bodily
harm and murder. The appellant
appeals against both convictions with leave of the Court
a quo.
[2] The
offences arise from occurrences on the evening of 3 February 2018.
The State's case, in summary, was that
the complainant in respect of
the first offence (Xolani Sqwayana) left a tavern with the appellant
and another person (Kabelo)
and during the course of them walking to
Kabelo's house, words were exchanged between Xolani and the appellant
subsequent to which
the appellant drew his knife and attempted to
stab Xolani. Xolani sustained injuries to his fingers as was
evidenced by the medico-legal
report. In respect of the murder
offence the State's case was that this offence was committed after
the first offence and arose
from an altercation between the appellant
and the deceased, witnessed by the second state witness (Atang
Ramatseka) during the
course of which the appellant and the deceased
fought with knifes and the appellant stabbed the deceased. Both
Xolani and Ramatseka
were single witnesses for the purposes of the
respective offences.
[3] The
appellant testified and denied stabbing Xolani. In respect of the
murder offence the appellant's version
was that he and the deceased
engaged in a scuffle during the course of which the deceased was
stabbed. His version was that the
deceased had been armed with a
knife, the appellant struggled with him and managed to dispossess him
of the knife, the deceased
then attempted to take possession of the
knife again, a struggle ensued and the deceased was stabbed
accidently during that struggle.
[4] In
my view the appeal against the first conviction must fail. Although
Xolani was a single witness, in its
totality his evidence was clear,
coherent and reliable and, when taken in conjunction with the other
objective evidence, the State
had proved beyond a reasonable doubt
that the appellant was the person who had caused injury to Xolani. It
was not in dispute that
Xolani actually suffered injuries during the
incident. The question was whether the appellant was the person who
had injured him.
In this regard Xolani positively identified the
appellant and his evidence was corroborated by the testimony of
Ramatseka. Ramatseka
testified that he observed the appellant
attempting to climb over the fence of Xolani's home and the appellant
told him that he
had been quarreling with Xolani. Further, even
though the appellant's version as to what had transpired was
different, on the appellant's
own version he had chased Xolani, which
supports Xolani's version that he had ran away after being stabbed by
the appellant.
[5] On
the evidence before the Court a
quo
therefore, the appellant
was the person who had stabbed Xolani and the appellant's denial
cannot reasonably, possibly be true. There
was a discrepancy in
Xolani's evidence as to which hand and fingers had been cut during
the episode. In our view this is not material
since the medico-legal
report clearly shows that Xolani had been injured and this was not in
dispute. The appeal in respect of
the first offence therefore fails.
[6]
On
the evidence before the Court the State did not prove all of the
elements of the offence of murder. It was not in dispute that
the
appellant and the deceased engaged in a struggle during the course of
which the deceased was fatally stabbed. The issue was
whether the
State's evidence demonstrated that the appellant had intentionally
stabbed the deceased and in my view the evidence
did not demonstrate
this beyond a reasonable doubt. As above, Ramatseka was a single
witness in respect of the murder offence.
On Ramatseka's own version
it was the deceased who had drawn a knife from his backpack in order
to confront the appellant. Under
cross-examination Ramatseka
testified that the deceased had been advancing towards the appellant
with his knife indicating that
he was going to stab the appellant.
[1]
Ramatseka grabbed the deceased in an effort to disarm him, and both
of them fell to the ground, however the deceased yet managed
to get
up and confront the appellant with his knife.
[2]
Ramatseka conceded during cross-examination that nothing prevented
the appellant from delivering further blows to the deceased,
which
supports the appellant's version that he was warding off being
attacked by the deceased and did not intend to kill him
[7]
Ramatseka
was also cross-examined on the statement he had provided to the
police the
morning after the event and his state of inebriety at the time of the
incident. He made concessions in this regard which
detract from the
reliability of his version. He conceded that different versions of
events had been provided and that drunkenness
and alcohol were
contributing factors to these different versions.
[3]
Ramatseka's statement to the police a day after the incident was to
the effect that the person who stabbed the deceased was unknown
to
him, he was under the influence of alcohol and he did not know what
had transpired between the deceased and the person who had
stabbed
the deceased, nor did the deceased tell him who had stabbed him.
[4]
[8] Considered
in its totality, Ramatseka's evidence, as that of a single witness,
cannot be regarded as clear
and satisfactory in every material
respect. His admission of being drunk and the discrepancies with his
previous statement detract
from the reliability of his evidence. In
any event, his actual testimony was that it was the deceased who had
commenced the attack
and it is indisputable that the deceased was
stabbed in the course of an attack on the appellant which he (the
deceased) had initiated.
It is the onus of the State to prove every
element of the offence and the State's evidence did not prove that
the appellant had
intentionally killed the deceased. The evidence of
the single witness was far too unreliable to support a conviction on
the second
count and the appeal must consequently succeed in respect
of the murder conviction.
[9] In
the circumstances I propose the following orders:
1. The
appeal in respect of the appellant's conviction for assault with
intent to do grievously
bodily harm is dismissed.
2. The
appeal in respect of the appellant's conviction for the offence of
murder is upheld and
the appellant's conviction and sentence in
respect of this charge are set aside.
GANI AJ
I
agree, it so ordered
Mngadi
J
APPEARANCES
Case
Number: AR
589/18
For
the Appellant: Mr
V. E Ngwenya
Instructed
by: Legal
Aid South Africa
187
Berg Street
PIETERMARITZBURG
For
the respondents: Ms
S Singh
Instructed
by: National
Director of Public Prosecutions, KwaZulu-Natal
PIETERMARITZBURG
Email:
suhana.singh@npa.gov.za
Heard
on: 10
September 2021
Judgement
delivered on:
[1]
Evidence of Ramatseka, page 3, lines 1 – 4.
[2]
Evidence of Ramatseka, page 3, lines 5 – 7.
[3]
Evidence of Ramatseka, page 9, lines 17 – 20; Evidence of
Ramatseka, page 11, lines 10 – 15.
[4]
Evidence of Ramatseka, pages 11 and 12.