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[2019] ZAKZPHC 9
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Mbatha v S (AR67/2018) [2019] ZAKZPHC 9 (4 March 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
APPEAL CASE NO:
AR67/2018
In
the matter between:
ZWELAKHE
THULANI SBAYI MBATHA
Appellant
and
THE
STATE
Respondent
ORDER
On
appeal from:
Ulundi
Regional Court (sitting as court of first instance):
The
appeal against both convictions is
dismissed.
APPEAL JUDGMENT
Delivered:
4 March 2019
Mbatha
J (Mnguni J concurring)
[1]
The appellant was convicted on 30 September 2016 by the Regional
Court Ulundi, held
at Eshowe, of one count of murder and one count of
attempted murder, read with the provisions of s 51 and Schedule 2 of
the
Criminal Law Amendment Act 105 of 1997
. The appellant was
sentenced to undergo twenty years’ imprisonment in respect of
the murder conviction, and five years’
imprisonment in respect
of the attempted murder conviction. The sentence in respect of the
attempted murder conviction was ordered
to run concurrently with the
sentence in respect of the murder conviction. He was effectively
sentenced to a twenty year term of
imprisonment. The appeal against
both convictions is with leave of the court a quo.
[2]
For the sake of practicality, I will briefly summarise the evidence
of the State witnesses
giving rise to the conviction of murder. Ms
Mpumelelo Mbhele (Mpumelelo) testified that on 6 December 2015, at
about 17h00, a terrified
Skuta (the deceased), arrived at her
homestead and reported that someone was chasing him. Shortly
thereafter the appellant arrived
and enquired from the deceased why
he was abusing his trust.. The deceased was apologetic, and informed
the appellant that since
he warned him not to interfere with his
girlfriend Mjombozi, he had heeded his warning. It was clear to
Mpumelelo that the dispute
related to the suspicions by the appellant
that the deceased was having an affair with Mjombozi. At the behest
of the appellant,
the deceased handed over his mobile phone to the
appellant. As the appellant perused the content on the mobile phone,
Mjombozi’s
name appeared on the list of the saved numbers. The
appellant then aggressively grabbed the deceased by his clothes at
the chest
area. When this happened, Mpumelelo called out to her son
to come and separate the two men. Mpumelelo then suggested that the
deceased
and the appellant leave her home, and report their problem
to the Induna. Instead, the appellant informed the deceased that they
must leave to speak to Mjombozi.
[3]
A while later Mpumelelo requested her son, Nhlakanipho (Nhlaka), to
go and check up
on the two men, to see if they were not fighting.
Nhlaka returned back, and reported to her that he saw the two men
seated at the
bus station.
[4]
Nhlaka’s evidence materially corroborated that of his mother,
Mpumelelo. It
was also Nhlaka’s evidence that before the
confrontation at his home, he had been with the appellant at the
appellant’s
homestead. They left together and separated when
Nhlaka entered his home. The appellant, according to Nhlaka, was on
his way to
visit Mjombozi. As Nhlaka entered his home, he observed
the hurried arrival of the deceased followed by appellant. He
confirmed
that after he had separated them at the behest of his
mother, they left his homestead. A while later, he had observed
them
at a distance, sitting together at the bus station. He estimated
the time to have been shortly after 19h00 when he last saw them.
[5]
The State also led the evidence of Thulani Dlamini (Dlamini), whose
evidence was that
at about 05h00 on 7 December 2015, he was doing
stock taking at his tuckshop. He unexpectedly heard a knock at the
window of the
tuckshop, whereupon he saw the appellant standing
outside the shop. The appellant produced a R10 note, and bought four
loose cigarettes.
Dlamini enquired from him why he was up so early in
the morning. The appellant’s response was that he had injured
someone.
He had hit that person with a hammer, which prompted Dlamini
to enquire if that person passed away. He also learnt from the
appellant
that he was referring to the deceased. This arose his
curiosity, as he observed that the appellant’s clothing did not
have
any blood stains. Dlamini also enquired what that person had
done to the appellant, whereafter the appellant told him he had
injured
the deceased as the deceased was in love with the mother of
his children. Dlamini informed the court that the deceased, and the
mother of the appellant’s children, were people known to him,
though he did not know her name. Dlamini informed the court
that he
did not enquire from the appellant when the incident took place, but
learnt that it happened in their ward, Donsamahoho.
Dlamini also
learnt from the appellant that the deceased had been hit on the head
with a hammer.
[6]
The appellant in his defence denied that he was in Donsamahoho on 6
and 7 December
2015. He denied setting foot on the Mbhele homestead
on 6 December 2015 and denied that there was any confrontation
between himself
and the deceased at the Mbhele homestead. The
appellant denied knowing Dlamini at all and denied that he ever met
him on the morning
of 7 December 2015, when he admitted to killing
the deceased. He raised an alibi that on the night in question,
namely 6 December
2015, he had been with his girlfriend,
Mjombozi.
[7]
The State’s case is based on circumstantial evidence, and
therefore the all
enduring logic as stated in
R
v Blom
[1]
should be applied. The appellant left the Mbhele homestead with the
deceased to confront the appellant’s girlfriend regarding
the
suspected love relationship between her and the deceased. They were
last seen together, seated at the bus station by Nhlaka.
The
following morning the deceased body was found lying dead near a
footpath in the same area where they were last seen together.
[9]
At the plea stage, the appellant did not proffer the basis of his
defence. In addressing
the court in terms of s 150 of the Criminal
Procedure Act 51 of 1977
(the
Act), the prosecutor informed the court that certain admissions were
made to Dlamini on the morning of 7 December 2015. This
prompted the
court to enquire from the appellant’s legal representative if
there will be a challenge to the admissibility
of such evidence. The
court was informed that he denied making any admissions at all. The
court a quo in its judgment accepted
that the appellant made the
admissions to Dlamini, as they were detailed even to the extent of
mentioning the type of weapon used,
and the place on the body where
the deceased was hit with a hammer. The court a quo found Dlamini’s
evidence to be consistent
with the findings of the post mortem
examination, which found that the deceased’s skull had a
fracture, which was the size
of a golf ball, and which was be
consistent with the use of a hammer.
[10]
The court a quo, in accepting the nature of this evidence, relied on
s 219A of the Act, which
reads as follows:
‘
(1) Evidence of any admission
made extrajudicially by any person in relation to the commission of
an offence shall, if such admission
does not constitute a confession
of that offence and is proved to have been voluntarily made by that
person, be admissible in evidence
against him at criminal proceedings
relating to that offence
…’
[11]
The court a quo also made credibility findings in respect of the
State witnesses. In
S
v Pistorius
[2]
the court expressed itself as follows:
‘
It is a
time-honoured principle that once a trial court has made credibility
findings, an appeal court should be deferential and
slow to interfere
therewith unless it is convinced on a conspectus of the evidence that
the trial court was clearly wrong.
R
v Dhlumayo and Another
1948 (2) SA 677
(A) at 706;
S
v Kebana
[2010]
1 All SA 310
(SCA) para 12. . . .
As
the saying goes, he was steeped in the atmosphere of the trial
.’
In this regard I am
satisfied that the court a quo’s approach to the credibility
finding of the State witnesses’ evidence
was correct. In the
absence of any suggestion that the trial court, in assessing the
credibility of the State witnesses was wrong,
this court is unable to
interfere with the court a quo’s finding.
[13]
I now turn to the question of whether there was sufficient
circumstantial evidence which supported
a conviction on murder.
Firstly, there are State witnesses who placed the deceased in the
company of the appellant. To reject this
evidence, would require
findings that the appellant’s aunt and nephew, Mpumeleo and
Nhlaka, lied about his presence in their
homestead. The probabilities
would not support that reasoning, as it is evidence which did not
incriminate the appellant in the
killing of the deceased.
[14]
The approach adopted by the court a quo was to consider the totality
of the evidence and, in
that process, weighed up the evidence of the
State witnesses against that of the appellant. The evidence of the
appellant being
that he was never at
Mpumelelo’s
residence
and never in the company of the deceased, clearly shows that he did
not take the court into his confidence. The court
a quo rightfully
rejected his evidence of not having been in their company on the late
afternoon of 6 December 2015 as false.
[15]
In
S
v Ntsele
[3]
the court held that the State, in a criminal matter, bears the onus
to prove the guilt of the accused beyond a reasonable doubt,
not
beyond the shadow of a doubt. It further held that in dealing with
circumstantial evidence, as in the present matter, the court
was not
required to consider every fragment of evidence individually. It was
the cumulative impression, with all the pieces of
evidence made
collectively, that had to be considered to determine whether the
accused’s guilt had been established beyond
a reasonable doubt.
Courts are often warned of a tendency to focus too intensively on
separate components of evidence and viewing
each component in
isolation. In the light of the evidence presented at the trial, I am
satisfied that on the conspectus of the
evidence, the inference was
correctly drawn that the appellant was guilty of the crime of murder.
[16]
The exact time of the killing of the deceased was unknown, but it
could not have been at any
time prior to 19h00 as this was the last
time that he was seen in the company of the appellant. The
appellant’s version of
not being at the Mbhele homestead or in
the company of the deceased is false. The evidence of Dlamini also
places him in the area
where the deceased died on the morning of 7
December 2015. Dlamini’s version is a plausible version
as he had no knowledge
that the appellant had been present at the
Mbhele homestead the previous afternoon.
[17]
A question arises as to where the hammer came from. No one mentioned
the hammer, save that it
was mentioned by Dlamini to the police upon
the discovery of the deceased’s body. The post mortem
examination conducted by
Dr Mashiyane also concluded that the
deceased was hit with a blunt object on the head. The appellant went
to great lengths in trying
to place himself away from the scene of
the crime, though his alibi placed him at Mjombozi’s home in
the area where the deceased
was killed.
[18]
By way of testing the probabilities one may ask: where did Dlamini
get all this information from?
Did he make it up? The
details of Dlamini’s statement are so detailed, that he could
not have made up the statement.
The cross-examination of
Dlamini was very brief, like the cross-examination of Mpumelelo and
Nhlaka. The cross-examination
did not accomplish its purpose of
eliciting false evidence from either Dlamini or the other witnesses.
[19]
The truthfulness of the evidence of Dlamini lies in that he stated
that the appellant did not
admit that he had murdered the deceased.
If he wanted to implicate the appellant he would have said that the
appellant said
“I killed the deceased” but he had said “I
have assaulted a person.” This appeal court is alive to what
was said in
Pezzuto
v Deyer & others
[4]
where Smallberger JA stated as follows:
“
It is true that it does not
follow merely from the fact that if a witness’ evidence is
uncontradicted it must be accepted.
It may be so lacking in
probability as to justify its rejection. But where a witness’
evidence is uncontradicted, plausible
and unchallenged in any major
respect there is no justification for submitting it to an unduly
critical analysis. . .”
[20]
The
court accepted that there was friction between the appellant and the
deceased relating to the appellant’s girlfriend and
that this
was the motive for the killing. In
S
v Boesak
[5]
the court expressed itself as follows:
‘
. . . it is clear law that a
cross-examiner should put his defence on each and every aspect which
he wishes to place in issue, explicitly
and unambiguously, to the
witness implicating his client.’
In this regard the
appellant did not even seem to know the time of his arrival at
Mjombozi’s place. Instead the appellant
went to great lengths
in trying to place himself away from the scene of the crime.
[21]
The evidence of Mpumelelo
and
Nhlaka proved that the appellant behaved in an aggressive manner
towards the deceased, demanded to see his cellphone, and checked
if
his girlfriend’s name appeared on the screen of the phone. When
the name appeared, he became angry and his own aunt referred
them to
an Induna. An Induna is a person entrusted with traditional
authority to resolve disputes when they arise.
This on its own
shows the seriousness of the fight between the appellant and the
deceased.
[22]
Nhlaka is the nephew of the appellant. They had been together the
very same afternoon at the
appellant’s homestead, which was not
disputed by the appellant. They parted on good terms and Nhlaka
had no reason
to make up a story about the appellant. On this
footing, the appellant was cunning enough to simply say that he was
falsely implicated,
though the court is aware that it is not
incumbent upon the accused to advance reasons why a State witness
would give false evidence
against him. However, this assists
the trier of facts when an accused suggests why a witness will be
against him. The appellant
failed to give a reason why his relatives
would falsely implicate him.
[23]
I have considered whether the version of the appellant could
reasonably possibly be true.
I have considered the alibi of the
accused against the objective facts placed before the court. It was
undisputed that the appellant
lives at a place which is a distance of
about 10km from Donsamahoho,
and
is not accessible by public transport; he was last seen at the bus
station by Nhlaka at about 19h00, and in the early hours
of the
morning by Dlamini at his tuckshop; he was the last person to be seen
in the company of the deceased and he stated that
he spent the night
at Mjombozi’s place. All these facts placed the appellant in
Donsamahoho
ward.
Therefore, the appellant’s version that he was never in that
place could not reasonably be true.
[24]
In rejecting the alibi of the appellant, it is important to note that
it must not be viewed in
isolation, but in the light of all the
evidence and probabilities.
[6]
The trial court correctly accepted that the alibi was false. The fact
that no one saw him kill the deceased is not of any assistance
to the
appellant.
[25]
In this case, murder in the form of
dolus eventualis
was
proven by the State, as the appellant ought to have foreseen the
possibility of hitting the deceased on the head with
a hammer, would
result in the death of the deceased, but persisted with his actions
regardlessly.
[26]
The second complainant, Fikani Mbatha (Fikani), testified as to the
incident which gave rise
to the appellant’s conviction on the
attempted murder charge. Fikani’s evidence was that on 4
December 2013, they had
been at the home of the appellant where they
had been drinking and enjoying music. He was in the company of
Chazani Sibisi (Chazani)
and the appellant. He testified that the
appellant had supper outside the room where they were seated. Upon
his return to that
room, having closed the door behind him, the
appellant suddenly demanded from Fikani as to what he knew about the
death of his
brother, Zamani. He hit Fikani on the cheek with the
butt of a firearm, and pushed him towards the corner of the room.
When Fikani
tried to grab him, the appellant fired a shot at him.
Fikani sustained an injury to the groin area. This happened in the
presence
of Chazani, who was also taken by surprise by the new
developments of that night.
[27]
When Chazani enquired from the appellant as to what was happening,
Fikani took the opportunity
to run out of that house and ran to the
Sibisi homestead, which was the home of Mzothule Sibisi (Mzothule).
Mzothule’s mother
instructed Mzothule to accompany Fikani home.
It was already dark and late at night. As they left Mzothule’s
home, the appellant
emerged from the opposite side of the pathway and
called out if Fikani was not amongst the persons on the pathway.
Fikani
upon realising that it was the voice of the appellant
ran into the forest and thereafter proceeded home and was taken to
hospital.
It was Fikani’s evidence that on that day 4 December
2013 they had been drinking at Phakathi’s residence, before
finally
ending at the appellant’s place, and at all times prior
to the indecent the appellant had a firearm in his possession. The
three of them had proceeded from Phatathi’s residence to the
appellant’s home, to enjoy the drinks which they bought
at
Phakathi when the tavern closed at 21h00. His evidence was that
although they had been sharing beers, none of them were very
drunk.
[28]
During the cross-examination of Fikani, it was suggested that he was
never at the appellant’s
place that night as their families do
not even visit each other, because of the misunderstanding between
the families which arose
from the death of the appellant’s
younger brother. It was suggested to Fikani that he was fabricating
that he had been shot
by the appellant, because of the ill feelings
between the families.
[29]
Chazani corroborated Fikani’s version as to what happened at
the home of the appellant.
He confirmed that there was an argument
between Fikani and the appellant about the death of the appellant’s
younger brother,
Zamani. Chazani testified that he knew Fikani and
the appellant, who were members of the same Mbatha clan. According to
Chazani
they had a cordial relationship amongst themselves. He
confirmed that Fikani was shot in his presence. During
cross-examination
it was suggested that he was falsely implicating
the appellant, and that the shooting incident was a sheer figment of
his imagination.
[30]
Mzothule testified that on the night of 4 December 2013, whilst
seated outside on the stoep at
his home, the badly wounded Fikani
arrived at his home. He reported that he had been shot at by the
appellant who accused him of
having killed Zamani. Mzothule’s
mother instructed him to accompany Fikani to his home. He informed
the court that when they
were about to enter the road, a man, who
introduced himself as Zwelakhe (the appellant), emerged, and enquired
if one of them was
Fikani. Without saying anything further, the
appellant fired a shot at Fikani who ran into the forest.
[31]
Mzothule testified that he was certain that it was the appellant who
had fired a shot at Fikani,
as he had a conversation with him,
accompanied the appellant to fetch tobacco from his room, as they had
no matches and they returned
to Mzothule’s home, where the
appellant spent the night. He also confirmed that the appellant was
in possession of a black
handgun on the night in question. The
appellant also denied meeting Mzothule, that what he testified about
never happened, and
that Mzothule had a vendetta against the
appellant.
[32]
The medical evidence handed in, by consent, confirmed that the Fikani
sustained a gunshot wound
to the groin. The court a quo found that
the evidence of the witnesses for the State to be credible. It found
that the alleged
conspiracy, as advocated by the appellant, to be
senseless as the appellant brazenly shot Fikani in front of two
independent witnesses.
The court a quo rightfully rejected the
appellant’s defence that he was never in the company of the two
State witnesses,
as he could not state where he was, on the night in
question. The court a quo came to the conclusion that the nub of the
State’s
case did not even rest on the identification of the
appellant, as it was not disputed that the State witnesses and the
appellant
knew each other very well and for a long time.
[33]
This court has also not been persuaded that the appellant was wrongly
convicted of the attempted
murder charge. The appeal on the
conviction for murder and attempted murder should fail.
[34]
Accordingly, I propose the following order:
That the appeal against
both convictions is dismissed.
____________________
MBATHA
J
_____________________
MNGUNI J
Date
of hearing
: 1 March
2019 (D Court)
Date
delivered
: 4 March 2019
Appearances
:
For
the Appellant
: Adv I Khan
Instructed
by
: Justice Centre
Pietermaritzburg
For
the Respondent
: Adv ES Magwaza
Instructed
by
:
The Director of Public Prosecutions
Pietermaritzburg
[1]
1939 AD 188.
[2]
[2014] ZASCA 47
;
2014 (2) SACR 314
(SCA) para 30.
[3]
1998 (2) SACR 178
SCA
[4]
[1992] ZASCA 46
;
1992 (3) SA 379
(A) at 391E-F
[5]
[2000] ZASCA 112
;
2000 (1) SACR 633
(A) at para 50
[6]
R v Hlongwane
1959 (3) SA 337
(A)