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[2019] ZALMPPHC 3
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Nkuna and Another v S (AA07/2018) [2019] ZALMPPHC 3 (22 February 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: AA07/2018
In
the matter between:
GARNETH GEZANI NKUNA
FIRST APPELLANT
RHULANI CHAUKE
SECOND APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This
is an appeal against the conviction and sentence of the two
Appellants by Mabesela J in the Gauteng Division, Pretoria
(functioning as Limpopo Division) and sitting at Louis Trichardt on 7
March 2013. The Appellants were convicted and sentenced as
follows:
1.1.
Murder read with the provisions of section 51(1) of Act 105 of 1997 –
both Appellants sentenced to
life imprisonment.
1.2.
Possession of a firearm and ammunition – second Appellant
sentenced to three years imprisonment.
The
appeal is with leave of the Supreme Court of Appeal.
[2]
The First Appellant is linked to the commission of the crime in that
he had made a confession
to a Magistrate, which confession was ruled
admissible by the trial Court after holding a trial within a trial.
The First Appellant
closed his case and did not testify in his
defence in the main trial. The Second Appellant denied being there at
the scene of crime,
averring that he was in Tembisa. He does not even
know the Giyani area, and was taken there for the first time after
the arrest.
[3]
The conviction stemmed from an incident on 10 May 2010 at Thomo
Village, Giyani when the deceased,
one Thirayisa Mthavini Nkuna was
shot dead outside her house during the night. The First Appellant
also raised a defence of
alibi
, that he was at Tembisa on the
date on which the offence was committed.
[4]
The evidence that implicates the Second Appellant is that of Ms
Mihloti Nkuna, the deceased’s
daughter. She testified that on
10 May 2010 at about 20h45 she was at her homestead together with the
deceased when she heard a
knock at the door. When she went to the
door she met an unknown person who exchanged greetings with her. That
person told her that
he had been directed to her place by her
neighbour and was looking for Mihloti. She confirmed that she is
Mihloti. The unknown
person said he got lost and wanted to be
directed to one Maluleke’s residence. The deceased also came
and joined the conversation.
The witness, Mihloti told the Court that
the said unknown person was the Second Appellant before Court.
[5]
Mihloti testified further that the Second Appellant told her and the
deceased that he came from
Mahoni and was there at Thomo Village
because he was doing some building construction work. The Second
Appellant was referred to
a certain tavern where he would make some
enquiries about the direction to Maluleke residence. Before he could
leave, the Second
Appellant asked for water to drink and Mihloti
obliged. After he drank the water the Second Appellant and the
deceased walked together
with the deceased walking in front of him,
proceeding to the neighbour’s homestead. After about 2 –
3 minutes, Mihloti
heard two gun shots and when she went to the scene
she found the deceased laying on the street alone approximately 10
metres from
her house. The Second Appellant was no where to be seen.
[6]
According to Mihloti at the time she spoke to the Second Appellant in
front of her house there
was a bright electricity light from inside
and also outside in the street. She conversed with the Second
Appellant for about 4
– 5 minutes and could see the clothing of
that person clearly being black leather jacket, half boots and that
he had nothing
covering his face. On his head the person had a German
cut.
After
sometime and early in July 2010 the witness, Mihloti was invited to
attend an identification parade at Giyani Police Station
where she
positively pointed out and identified the Second Appellant as the
person who came to her homestead on the night of 10
May 2010.
[7]
The evidence of Mihloti concerning the identity of the Second
Appellant remained intact and unshaken
during cross examination. It
was put to her that she had an opportunity to meet or see the Second
Appellant beforehand and prior
to the holding of and the pointing out
on the identification parade at the Police Station. She denied. Her
evidence regarding the
conduct of the identification parade is
corroborated by the following Police Officers who took part in
conducting the identification
parade: Warrant Officer Price Ndlovu,
Warrant Officer Joseph Kubayi, Constable Caroline Vukeya, Constable
Moses Tibane and Constable
Lucky Baloyi. The evidence of the
aforementioned Police Officers is equally unshaken and is thus
credible to the effect that there
was no irregularity in the conduct
of the identification parade.
[8]
It was argued on behalf of the Second Appellant that even if
it were to be found that the Second Appellant
was positively
identified as the person who came to the deceased’s house on
the day of the incident and walked with her from
the house to the
street, there is no direct evidence that the Second Appellant is the
person who shot at the deceased. That the
evidence of Mihloti is
lacking or insufficient in this regard, so the argument goes.
[9]
This argument is flawed. The trial Court correctly made a finding
that there was circumstantial
evidence sufficient enough to find the
Second Appellant guilty. The Second Appellant and the deceased left
the deceased’s
house to the street en route to the neighbour’s
residence. The deceased was shot in the street approximately 2 –
3
minutes after she left her premises with the Second Appellant. Her
body was seen on the street approximately ten metres away from
her
premises. No one was seen next to the body of the deceased or in the
street immediately after the shooting. The Second Appellant
disappeared into thin air without any effort to assist the shot
victim or run back to the deceased’s house or neighbours
to
report the incident.
[10]
In the absence of any evidence that there was someone other than the
Second Appellant who was either in the
company of the deceased or was
present in the street where the deceased got shot and killed, the
Court
a quo
, correctly in our view, drew an inference that the
Second Appellant is the person who shot and killed the deceased.
See:
R
v Blom
1939 AD 202
.
[11]
The evidence of the witness, Mihloti Nkuna is that of a single
witness.
Section 208
of the
Criminal Procedure Act No. 51 of 1977
provides that an accused may be convicted of any offence on the
single evidence of any witness. The evidence of such a witness
should
be treated with caution. In
S
v Leve
2011 (1) SACR 87
(ECG)
Jones
J pointed out that if a trial Judge does not misdirect himself on the
facts or the law in relation to the application of a
cautionary rule,
but instead demonstrably subjects the evidence to careful scrutinity,
a Court of appeal will not readily depart
from his conclusions. An
Appeal Court’s powers to interfere on appeal with the findings
of fact of a trial Court are limited.
In the absence of demonstrable
and material misdirection by the trial Court, its findings of fact
are presumed to be correct and
will only be disregarded if the
recorded evidence shows them to be clearly wrong.
See
also:
S
v Monyane and Others
2008 (1) SACR 543
(SCA) at [15]
.
[12]
The
cautionary rule is a rule of practice, not a rule of law, and that in
applying the cautionary rule it is well to have
regard to the warning
of Holmes JA in
S
v Artman
1968 (3) SA 339
(A) at 431 C
:
“…
..while
there is always need for caution in such cases, the ultimate
requirement is proof beyond reasonable doubt, and Courts must
guard
against their reasoning tending to be stifled by formalism. In other
words, the exercise of caution must not be allowed to
displace the
exercise of common sense….”
[13]
In
casu
, we are satisfied that the trial Judge
applied the necessary caution on the evidence of the single witness,
Mihloti Nkuna. Her
evidence is satisfactory in every material
respect. Her evidence on the identity of the Second Appellant is
reliable. She saw the
Second Appellant in light cast by an electric
light inside and outside the house. She spoke to him for about 4 –
5 minutes
in a relaxed atmosphere where she even gave him water to
drink. She could describe his haircut and clothing and above all the
Second
Appellant was an arm’s length from her when speaking to
him.
[14]
The witness later identified the Second Appellant at an
identification parade. This identification serves
as further and
objective corroboration of the witness’s honesty and
reliability. In the circumstances the Court
a quo
cannot be
faulted in accepting the evidence of Mihloti Nkuna.
[15]
The Second Appellant averred that the only reason why the witness
identified him at the identification parade
was because she had seen
him beforehand at the Police Station prior to the identification
parade. The version of the Second Appellant
in this regard was
correctly rejected by the Court
a quo
as not being reasonably
possibly true. The evidence produced by the State through several
Police Officers regarding the correctness
and requirements of the
identification parade proved beyond reasonable doubt that this parade
was properly held –
S v Mbuli
2003 (1) SACR 97
(SCA) at [46]
– [48]
.
It
is noteworthy to mention that all the twelve suspects who appeared on
the parade were almost identical in colour, size and all
were wearing
blankets.
[16]
The conviction of the First Appellant is based on the confession he
made to a Magistrate. In the confession
the First Appellant states
that he suggested to his brother and sister that he should get
someone to kill somebody in order to
prevent many deaths which
occurred in their family. He suspected the deceased as the person
responsible for the deaths of his family
members and then got hold of
the Second Appellant to carry out the killing. It is appropriate that
the whole contents of the First
Appellant’s confession be set
out hereunder.
[17]
The contents of the statement (confession) made by the First
Appellant reads as follows:
“
Thereafter
the DECLARANT who appears to be in his sound and sober senses,
voluntary makes the following statement: I had a problem
after my
mother and younger brother died on the 16
th
February 2009. We went to a traditional Healer at Phalaborwa and we
were told that there was something buried at our homestead
which was
occupied by my deceased mother. She told us that she will need R 1500
per homestead to uproot the buried herb and it
totaled R 7500. I was
with my uncle, Justice Hlungwani and my brother Solly Nkuna, Caswell
Nkuna and Sadick Nkuna.
We
did not have money and we told her that we shall come back when we
have sufficient funds. She did not tell us as to who had buried
the
said herbs or who was responsible for it. It was after the funeral of
the two deceased persons. The reason we went to the traditional
healer it was because of the continuous deaths of family members as
my sister, Annicky Nkuna who died after short illness in 2005
and
then my mother and brother in a car accident.
We
arranged for unveiling together with the deceased, MTHAVINI NKUNA,
but she failed to attend the ceremony. We had problems regarding
her
failure to attend. I thought that she knew what was causing the
death.. I told Caswell. Sadick and Tunic, our sister that it
was
better to get someone to kill somebody so that the deaths in the
family should stop. They agreed with me and I was mandated
to look
for a person who could carry out the evil deed. I found RHULANI who
was from either XIGALO/MAHUNISI but he stays at
SECTION 7
IVORY PARK
TEMBISA, but I do not know the house number.
He
charged me R 10 000.00 for the job. He contacted me and we came
back together in a motor vehicle which was arranged by the
said
Rhulani. I was driving. It was on Monday the 10
th
May 2010 and we arrived at THOMO VILLAGE between 19h00 and 20h00. I
left him at a short distance from the premises of the deceased
and
waited a distance further from where I left him. He joined me and
told me that the job was done. We drove back to the Reef.
I paid him
the whole amount on the 11/05/10.
I
was contacted telephonically by Caswell on the 11/05/2010 and he told
me that our mother, the deceased had been shot dead. I arranged
for
leave but it was refused and I eventually came back on Friday, the
14/05/10. Rhulani has not yet been arrested. He used his
firearm.
Signature of
Declarant…………..
Date……………………….
Signature of
Official Interpreter……………………..
Date
Signature of
Presiding Officer………………..
…………………………………
..
Date Stamp
”
[18]
The admissibility of the aforesaid confession was contested by the
First Appellant who averred that same
was not made freely and
voluntarily. The First Appellant alleged that he was assaulted by the
Police and was denied his right to
legal representation. The
allegations of assault were denied by the Police who gave evidence in
a trial within a trial. The Magistrate
who took down the confession
also testified and from his evidence it became clear that the
allegations of assault on the First
Appellant and the alleged denial
of a right to legal representation were baseless and not reasonably
possibly true.
[19]
In the trial within trial four Police Officers, the Magistrate and
First Appellant’s brother, Solly
Nkuna testified for the State.
The First Appellant also testified. The Court
a quo
took into
consideration the credibility of all the witnesses and came to a
factual finding that the confession was freely and voluntary
made and
was thus admissible. In our view, the factual findings of the Court
a
quo
in this regard cannot be faulted.
[20]
It is trite that a Court of appeal will be hesitant to interfere with
the factual findings and evaluation
of evidence by a trial Court –
see
R
v Dhlumayo and Another
1948 (2) SA 677
(A).
In
S
v Francis 1991(1) SACR 198 (A) at 198j – 199a
the
approach of an appeal Court to findings of fact by a trial Court was
crisply summarised as follows:
“
The
powers of a Court of appeal to interfere with the findings of fact of
a trial Court are limited. In the absence of any misdirection
the
trial Court’s conclusion, including its acceptance of a
witness’ evidence is presumed to be correct. In order to
succeed on appeal, the Appellant must therefore convince the Court of
appeal on adequate grounds that the trial Court was wrong
in
accepting the witness’ evidence – a reasonable doubt will
not suffice to justify interference with its findings.
Bearing in
mind the advantage which a trial Court has in seeing, hearing
and appraising a witness, it is only in exceptional
cases that the
Court of appeal will be entitled to interfere with a trial Court’s
evaluation of oral testimony.”
See
also
S
v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645 e – f
.
[21]
After
the confession was ruled admissible the First Appellant closed his
case without giving evidence on the merits.
Section 209
of the
Criminal Procedure Act No. 51 of 1977
provides that –
“
An
accused may be convicted of any offence on the single evidence of a
confession by such accused that he committed the offence
in question,
if such a confession is confirmed in a material respect or, where the
confession is not so confirmed, if the offence
is proved by evidence,
other than such confession, to have been actually committed.”
[22]
From the contents of the confession the following facts show that the
First Appellant was involved in the
killing of the deceased:
22.1.
The First Appellant suspected the deceased of being responsible for
the
death
of his family members. There was therefore a motive to kill the
deceased.
22.2.
The name of the Second Appellant (Rhulani) who stays in Tembisa is
mentioned by the First Appellant. The Second Appellant
had not been
arrested by then.
22.3. First
Appellant states that they arrived on 10 May 2010 at Thomo Village
between 19h00 and 20h00. This is
in line with the evidence of Mihloti
Nkuna that the killing of the deceased occurred on that date at about
20h45.
22.4.
First Appellant states that he left Second Appellant at a short
distance from the premises of the deceased and waited
a distance
further from where he left him. The Second Appellant joined him and
told him that the job is done. They drove back to
the Reef. Indeed
after the Second Appellant shot the deceased he disappeared into the
darkness. A reasonable inference to be drawn
is that he went to join
the First Appellant where the latter had been waiting. Thereafter
they drove back together to Tembisa,
where they came from. Both
Appellants stated in their defence that they were in Tembisa on the
10 May 2010 and not at Thomo Village.
[23] We
are satisfied that with the sufficiency and the cogency of the
evidence against the Second Appellant
and the admissibility of the
confession made to the Magistrate by the First Appellant, the
conviction of both Appellants on the
charge of murder is in order.
Furthermore the conviction of the Second Appellant on the charges of
unlawful possession of a firearm
and ammunition is also in order.
[24] The
Appellants appeal against the sentence of life imprisonment. The
Court
a quo
convicted the appellants on murder read with the
provisions of
section 51(1)
of the
Criminal Law Amendment Act 105 of
1997
which prescribes a sentence of life imprisonment for murder
where such murder was premeditated or committed in the furtherance of
a common purpose, unless the Court finds that there are substantial
and compelling circumstances that justify a lesser sentence.
[25]
In
casu
the murder of the deceased was clearly preplanned and
involved common purpose on the part of the two Appellants. The
deceased was
assassinated after being lured outside her house. She
was shot and killed for no reason other than apparent belief that she
might
have been responsible for the death in the family of the First
Appellant. The murder was also a murder for hire, that is a contract
killing.
[26]
In
S v Ferreira and Others
2004 (2) SACR 454
(SCA)
it was held
that contract killing or murder for hire is an abomination which is
corrosive at the very foundation of justice and
its administration.
Furthermore it was said to be the most offensive crime known to the
law and that it would be highly unlikely
for substantial and
compelling circumstances to be present.
See
also
Director
of Public Prosecutions Gauteng v Tsotetsi
2017 (2) SACR 233
(SCA)
where a sentence of 20 years imprisonment imposed by the trial Court
was set aside on appeal and substituted with a sentence of
life
imprisonment.
[27]
In the present case we are of the view that the Court
a quo
was
correct to have found the absence of substantial and compelling
circumstances. The sum total of the mitigating features in the
Appellants’ instance amounted only to their personal
circumstances. There has been nothing mitigating in their case in the
actual commission of the murder. Accordingly there is no misdirection
on the part of the Court
a quo
with regard to the sentences
imposed.
[28]
In the result the appeal against conviction and sentence in respect
of the two Appellants is dismissed and
the sentences imposed by the
trial Court are confirmed.
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
I
agree
M
G PHATUDI
ACTING
DEPUTY JUDGE PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
I
agree
M
S SIKHWARI
ACTING
JUDGE OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 15 February 2019
Judgment
delivered on : 22 February 2019
For
the Appellant
: Mr M P Legodi
Legal
Aid South Africa
Polokwane
Justice Centre
For
the Respondents :
Adv J J Kotze
Director
of Public Prosecutions
Limpopo
Division, Polokwane