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[2019] ZAECMHC 22
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Mbiza and Others v S (CA&R 83/2018) [2019] ZAECMHC 22 (15 May 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – MTHATHA
Case No: CA&R 83/2018
Date Heard: 13/05/2019
Date Delivered:
15/05/2019
In
the matter between:
MXOLISI
MBIZA
First
Appellant
THEMBINKOSI
NGCAYETHAFA
Second
Appellant
MPUMZI
ZAKADE
Third
Appellant
SIVUYILE
MBANGAZELI
Fourth
Appellant
and
THE
STATE
Respondent
JUDGMENT
MAKAULA
J:
A.
Introduction
:
[1]
This is an appeal against conviction. The appellants were
convicted by the Regional
Court in the district of Mthatha on 6
February 2018 of murder. The appeal serves before us with the
leave of the court
a quo.
[2]
The grounds of appeal are set out in the Notice of Appeal in detail.
I shall
not regurgitate them for purposes of the appeal.
Suffice for me to summarise the grounds as I comprehend them.
Furthermore,
I shall not deal with the first ground because it
relates to sentence. The second ground is predicated on the
evidence of
one of the witnesses, i.e. N[….] M[….]
(N[….]). The court
a quo
is criticized for having
relied on her testimony which was hearsay evidence. The third
leg is that the
court a quo
erred in accepting the evidence of
G[….] P[….] (G[….]) who is a single witness
regarding the events that led
to the death of the deceased. His
evidence is full of contradictions and should have been rejected by
the court
a quo
, so it is submitted. The fourth ground
is that the post mortem findings are not supported by the evidence of
the single evidence
of G[….]. I shall refer to the
appellants as the accused.
B.
Facts
:
[3]
The common cause facts are that the deceased, the accused and the
State witnesses
reside in [….]. N[….] operates a
tavern in the area. The accused, deceased and G[….]
were
her patrons on the night of 31 January 2015.
[4]
The deceased was troublesome to an extent that he was chased away
from the tavern.
That was after he had been locked in the
bedroom of N[….]. He was found dead the following
morning next to the tavern.
That led to the arrest of the
accused. The medico-legal post mortem examination completed by
Dr Mamve revealed the following:
“
4. That the chief
post mortem findings made by me on this body were:-
·
Extradural
haematoma on the occipital area; skull fracture on the left
occipito-parietal region;
·
bilateral
tibia and fibula fracture.
That as a result of my
observations a schedule of which follows, I concluded that the
cause
of death
was:
·
Extradural
haematoma (head injury) post assault.”
[5]
I state upfront that the evidence presented reveals that the deceased
was assaulted
with fists and was kicked. I shall deal with this
aspect later on.
[6]
The evidence of N[….]did not assist the State case at all.
Apart from
the evidence that the deceased was brought by her patrons
and locked in her bedroom because he was a nuisance, the rest of her
evidence should have been disregarded by the court
a quo
because it amounts to hearsay. She got information about the
assault on the deceased from Lucky. Lucky was never called
to
testify.
[7]
The next and only relevant witness who testified was G[….].
He testified
that the deceased was chased out of the tavern because
he was provoking people and a nuisance. He was told to go away
and
they locked the burglar guard. At some stage G[….]
and S[….] went outside to urinate. He testified that
while they were urinating, he saw the shadow of the deceased next to
the house. The deceased ‘pounced’ on accused
3.
S[….]retaliated and ‘pounced’ on the deceased
causing the deceased to fall on the ground. Siyabulela
kicked
the deceased while lying on the ground. G[….] left and
went back inside the tavern leaving them outside.
Later on
S[….] and accused 3 came back and joined him.
[8]
At midnight, N[….] told them to leave because she was closing
for the night.
They went out. As they were leaving, he
saw the deceased being assaulted by other people. Amongst those
were accused
1, 2 and 4. They were kicking and assaulting him
with fists. He could see because there was electric bulb
attached
to the side of the house that provided light. The
electric bulb was 9 paces away from where the deceased was
assaulted.
The deceased was screaming. However, he did
not observe any injuries on him. He and others proceeded
to a nearby
tavern where they continued to drink. A little
while later they were joined by accused 1, 2 and 4. He learnt
the following
day that the deceased had died.
[9]
The evidence G[….] became less convincing under
cross-examination. His
evidence is punctuated by
‘no comment’ when such was required or necessary.
For example, it was put to him that
he was ‘not a reliable and
honest witness’ his response was ‘no comment’.
It was further put to him
that by the time he left the tavern, the
deceased had already left, he gave a similar response. It was
put to him that the
accused, when they testify, would deny that they
assaulted the deceased and would say they left the tavern at 21h00.
He did
not want to comment. He could not comment when he was
told that the accused would say that they did not meet the deceased
after they left the tavern at 21h00. These responses to me
indicate that G[….] was not an honest witness.
Furthermore,
he was asked as follows in one instance:
“
Mr Nogumbe:
Accused 1, 3 and 4 will come and say before this Honourable Court
that never
assaulted the deceased on the day in question, are
you in a position to dispute
that? (Sic)
Witness:
No, I cannot dispute that”.
[10]
G[….] testified that at the time he saw the deceased outside,
the latter was armed with
a hammer. It is not clear from his
evidence what became of that hammer. G[….] conceded that
he did not know
whether accused 2 joined the people who assaulted the
deceased to intervene or stop the fight. He further agreed when
it
was put to him, that he could not dispute that accused 2 never
assaulted the deceased despite his earlier evidence.
[11]
Taking into consideration the evidence referred to above, it is
apparent that the court erred
in accepting the evidence of G[….].
His evidence under cross-examination contradicts his evidence in
chief markedly.
He is a single witness
[1]
and knew virtually nothing about how the deceased was assaulted.
His evidence has to be treated with caution.
[12]
The charge sheet stated that the deceased died as a result of
stabbing and being assaulted by
sticks. The evidence of G[….]
does not support this at all. The magistrate clearly
misdirected herself in finding
out that the defects in the charge
sheet were cured by the evidence. There is absolutely no such
evidence that cured it based
on the evidence. Even the post
mortem results do not support the averments made in the charge
sheet. No stab wounds
were noted by Dr Mamve. It is clear
that the State failed to prove its case beyond reasonable doubt.
The accused should
have been acquitted.
[13]
Consequently, I make the following order.
1.
The conviction is set aside and substituted with the following order.
2.
The accused are found not guilty and are discharged.
M
MAKAULA
Judge
of the High Court
Griffiths
J: I agree.
RE
Griffiths
Judge
of the High Court
For
the Appellant:
Mr NM Notununu
Mthatha
Instructed
by:
Mpumelelo Notununu & Ass
Mthatha
For
the Respondent:
Adv MD Nyendwana
Director of Public
Prosecution
Mthatha
Date
Heard:
13 May 2019
Date
Delivered:
15 May 2019
[1]
Section of the
Criminal Procedure Act 51 of 1977
provides that an
accused may be convicted of any offence on the single evidence of
any competent witness. In
R v Mokoena
1932 OPD 79
at
80; De Villiers JP held the following:
“Now the uncorroborated evidence of a single witness competent
and credible witness is no doubt declared to be sufficient
for a
conviction by (the section), but in my opinion that section should
only be relied on where the evidence of a single witness
is clear
and satisfactory in every material respect. Thus the section
ought not be invoked where, for instance, the witness
. . .
contradicts himself in the box . . . where he has not had proper
opportunities for observation, etc.”