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[2019] ZAECMHC 37
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S v Tutshana and Others (CC41/14) [2019] ZAECMHC 37 (5 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE HIGH COURT: MTHATHA]
Case
No. CC41/14
In
the matter between:
THE
STATE
And
MAKABONGWE
“BOTSOTSO” TUTSHANA
ACCUSED NO.1
JONGIKHAYA
“JOE”
MHLAULI
ACCUSED NO.2
SIMPHIWE
“MSAYBHO” MATU
ACCUSED
NO.3
AVIWE
LOBI
ACCUSED NO.4
JUDGMENT
JOLWANA
J
Introduction
[1] The accused were
charged with 13 counts being three counts of murder, one count of
arson, four counts of kidnapping, three counts
of attempted murder,
unlawful possession of a firearm and unlawful possession of
ammunition.
[2] The summary of
substantial facts in terms of section 144(3)(a) of the Criminal
Procedure Act 51 of 1977 (the
Criminal Procedure Act) recorded
the
following:
“
1.
The below incidents took place after it was alleged that the victims
were involved in the killing of a taxi driver. Thereafter
the
people involved (taxi owners/drivers and conductors) traced the
suspects in that murder case with intention to pay revenge.
2. Upon or about the 2
nd
October 2010 and at or near Tyumbu location, Mthatha the accused
arrived at the homestead of some of the victims, assaulted them
and
burnt the house of Bulelani Dikana Filiya. They also kidnapped
Bulelani Filiya and Avela Tuswa.
3. They went to the
homestead of Thuso Solani (the deceased in count 8) kidnapped and
killed him. They dumped his body in
the mealie fields.
4. On the 15 October 2010
the accused kidnapped and killed Gcinikhaya Canzibe. He died of
“
stab wounds
”.
5. On the 14 November
2010 the accused went to the homestead of Malusi Filiya carrying
firearms. They shot and killed him
(the deceased in count 11).
He died of “
gunshot wounds
”.”
6. The provisions of
section 51(1)(d)
of Act 105 of 1997 are applicable in that the death
of the deceased was caused by a group of persons acting in the
execution
or furtherance of a common purpose or conspiracy.”
[3] All the accused
pleaded not guilty to all the charges preferred against them.
They all elected to reserve their bases
of their pleas of not guilty.
The state’s case
[4] The state called its
first witness, Bulelani Filiya-Dikana (Bulelani) who testified that
he is one of the complainants in this
case. He knows all the
accused. He and accused no.1 are from the same locality.
He knows accused no.2 because
they were once arrested together in
respect of an unrelated matter. He only saw accused no.3 and
accused no.4 for the first
time on the day of the incident in this
trial.
[5] On 02 October 2010 he
saw all the four accused persons and two other unknown men who were
not arrested when they arrived at
his house. It was in the
morning at about 9:00. He was with Avela Tuswa (Avela) in his
house which was a three roomed
structure and they had just had
breakfast in the kitchen. He went to his bedroom to rest
leaving Avela in the kitchen.
He heard a noise of people who
were talking, coming into his house as they were talking. Those
people entered the house and
the first person to enter was Anathi who
was his neighbour. As he entered he was pointed with a firearm
by accused no.2.
Anathi was a fourteen year old boy at the
time.
[6] As they entered his
house accused no.2 was holding Anathi by the neck pointing a 9mm
firearm at his head. Accused no.2
was with many other people
including accused no.1, 3 and 4 who all entered the house. They
proceeded to the kitchen where
Avela was and attacked him. All
the accused attacked Avela. As a builder he had some spades and
harmers in the house
which those people took and used to attack
Avela. All four accused participated in the attack on Avela.
[7] Accused no.1 took the
spade, accused no.2 was carrying a firearm which he used to hit
Avela. He did not see what accused
no.3 and 4 were carrying but
they took his building tools and hit Avela with them. He could
hear Avela screaming from the
kitchen. All four accused
participated in the attack on Avela who was on top of a bed.
They were asking Avela why they
had killed a taxi driver and why did
they take the drugs. Avela was crying asking for forgiveness.
[8] They asked Avela
about the other people who lived with him in the house. Avela
told them that he was present in the other
room. Others
remained with Avela and others came to his bedroom. It was the
two unknown men who entered his bedroom.
As those two men
entered accused no.2 participated when he was apprehended. They
assaulted him but he managed to flee.
The one who assaulted him
was one of the two unknown men. He ran to his parental
homestead. However, his parents were
not at home, only his
eighteen year old sister Busiswa was there. At that time he was
bleeding from his head. He was
being chased by the two unknown
men and accused no.2. He realized that he could not get help at
his parent’s homestead
and decided to run to another homestead
in which he found young children. In the rondavel of that
homestead he took off his
jacket and threw it on top of the bed,
jumped into an unused refrigerator to hide.
[9] The four accused
persons and the two unknown men entered that homestead. They
asked about him from the little children
who said a man had entered
their house. He could hear the footsteps of his pursuers
entering the rondavel saying here is
the jacket of this young man.
They searched the rondavel and even opened the refrigerator he was
hiding in. They found
him in the refrigerator and took him out
saying here was the dog. It was accused no.2 who opened the
refrigerator and assaulted
him with accused no.1 and the two unknown
men. They hit him on the head with a spade, the two men were
carrying knives and
accused no.2 was carrying a firearm. He was
assaulted with a spade and a firearm. He was also stabbed on
the back and
face with a knife.
[10] After being taken
out of the refrigerator and assaulted he became unconscious. A
few minutes later a venture vehicle
arrived and he was loaded into it
and blindfolded with a cloth. When he was about to get into the
venture the cloth on his
face moved slightly and he noticed that his
house was on fire. Accused no.1 and others had remained behind
when he was chased
and it was them who set his house on fire.
It was when he returned from hospital that he saw that his house had
been completely
burnt down. He had to go to hospital where he
was sutured and was discharged the following morning.
[11] The venture drove
away and stopped in town at the taxi rank. At that stage the
cloth that had covered his face was now
on his neck. In the
venture vehicle it was himself and accused nos 2, 3 and 4.
Accused no.1 had been left at his homestead
with other people.
Some other people were off loaded from a bakkie and loaded into the
venture. He noticed that it
was Avela and Thuso Solani (Thuso).
[12] Accused no.2
instructed Avela to get under a seat of the venture. Accused
no.1 arrived carrying two litres of juice in
a container.
Accused no.2 instructed him to drink the juice and he realized that
it smelt like it had maize tank insecticide
tablet which is
poisonous. He swallowed some of the juice. As he was
drinking the juice Avela and Thuso were being
assaulted.
Accused no.2 had a knife and a firearm. He started vomiting.
Avela and Thuso were also made to drink
the juice and they also
vomited. As all of that was taking place the vehicle was being
driven out of town.
[13] The vehicle stopped
at Lindile locality. As accused no.2 was carrying the juice and
it was getting finished he could
see the poisoning insecticide
tablets in the juice. Accused no.2 tore the container of the
juice and took one tablet and
put it in his mouth and in Thuso’s
and Avela’s mouths. He, however, did not swallow the
tablet, he just kept
it in his month. Thuso and Avela swallowed
the tablets and Avela vomited it.
[14] On realizing that
they were becoming week they were left near a river by their captors
who drove away. When they were
alone Thuso said he had
swallowed his tablet and his stomach was aching. Avela said he
had also swallowed it but had vomited
it. It was then that he
suggested that they should run away so that even if they died they
died in the presence of other
people. They got up and ran
away. As they were running Thuso was becoming weak and he fell
next to a project garden
near the river.
[15] They continued
running leaving Thuso behind and he saw two vehicles coming.
Those vehicles chased him and Avela and the
community members of
Lindile location appeared. Their chasers started shouting that
they were thieves. Two of the people
who were chasing them went
on foot in the direction in which Thuso had fallen and they later
said they had finished Thuso.
It was accused no.2 and one of
the unknown persons called Lindi. They were taken and loaded in
a quantum vehicle by accused
no. 1 and 2 and the two unknown men.
In the quantum vehicle he noticed that accused no.3 was also in the
vehicle.
[16] They were taken to
an unknown forest where they were going to be killed. In the
forest they were assaulted by the four
accused persons with sticks.
They were also vomiting and they even vomited blood. He then
asked accused no.1 who is
from his locality if he was also part of
this. Accused no.1 said it was being done by people from the
taxi rank and therefore
he also needed to be present. He
testified that he was not involved in the taxi business, he was not a
driver and he was
not involved in drug dealing. He was being
killed because he was with Avela at the time they were attacked at
his homestead.
It was Avela who had killed a taxi driver and
had also snatched drugs from drug dealers.
[17] In that forest it
was accused no.3 who tried to intervene saying that they should be
pardoned. Avela was taken deep into the
forest by accused no.1 and 2
and Lindi while he remained in the quantum vehicle. They
returned without Avela. Accused
no.3 and 4 and one of the
unknown men had remained with him in the quantum vehicle.
Accused no.2 and the other unknown men
took him into the forest.
[18] As they entered the
forest he decided to run. Accused no.2 fired a shot and he
continued running and threw himself into
the tarred road. As he
fell on the road accused no.1 and 2 came out of the forest and
apprehended him. Two police vehicles
appeared and stopped near
the road. A police officer alighted and accused no.2 told him
that they were thugs who had robbed
people in town. The police
officer returned to his vehicle and drove away. He was taken
back to the quantum vehicle.
[19] By then it was in
the afternoon and he was taken to a homestead at Payne location where
it appeared that accused no.2 lived
there. He was tied with
shoelaces and put in a shack in that homestead which was then locked
with a padlock. One man
came and unlocked the padlock. He
took an iron rod and assaulted him asking him why he had stolen a
tyre from his home.
That man later left. He managed to
untie himself but pretended to be still tied. Accused no.3
arrived and said that
was his opportunity to escape as he had been
trying to let them set him free.
[20] Accused no.3 left
and he managed to escape and ran away. He ran to a
certain homestead and hid in a toilet.
An old lady from that
homestead gave him R20.00 which he used to take a taxi home. He
went to see a doctor who wrote his
injuries in a book. His J88
was handed to court as an exhibit together with a section 212
affidavit. It is noteworthy
that in that J88 form there is not
even a mention of Bulelani complaining of having ingested poison.
Part of his evidence
was that he had been fed a poisonous tank
insecticide.
[21] Apparently Avela had
also managed to run away because he later met him after his own
escape. When he returned home from
hospital he learned that
accused no.1 had been making threats and that his youngest brother
had been killed. He went to stay
with his girlfriend as his
homestead had been burnt down. His younger brother is the
deceased in count 11. His brother’s
killers had gone to
his parent’s homestead thinking that he was there when in fact
he had put up at his girlfriend’s
place. They found his
younger brother there and thought it was him and they shot and killed
him.
[22] Under cross
examination by Mr Dingiswayo for accused no.1 he testified that
accused no.1 owns a shop near his homestead.
It was put to him
that accused no.1 was at his shop when whoever abducted him did that
and he denied that. It was further
put to him that accused no.1
was in a condor vehicle when he was brought into it which then drove
to town and he denied that as
well. At or near Kei Cash in town
he was taken out of that condor vehicle to a mini bus taxi and
accused no.1 was not part
of all that. Bulelani said that in
that regard accused no.1 was telling the truth. He, however,
later sought to dispute
that which became one of many inconsistences
that characterized his evidence.
[23] It was pointed out
to him that in his evidence in chief he had testified that accused
no.1 had remained behind when he had
run away and hid in an unused
refrigerator in another homestead and he had also said that when he
was taken out of the refrigerator
accused no.1 had participated in
the assault on him. He then said that those who were left
behind had also given a chase
using a vehicle. His evidence
under cross examination changed quite significantly to his earlier
version which he had given
in his evidence in chief in very material
respects which were too many to mention.
[24] Under cross
examination by Mr Nohiya for accused no.2 he testified that he went
to hospital at night on the same day on which
they were attacked
which was the 02 October 2010. It was put to him that according
to his J88 form he went to hospital on
20 October 2010 at 10:49 and
he could not explain the discrepancy.
[25] Under cross
examination by Mr Lavisa for accused no.3 and 4 he confirmed that the
four accused and other people arrived at
that other homestead and
took him out of the refrigerator he was hiding in. He testified
that accused no.3 was not carrying
anything and accused no.4 was
carrying a stick. He also testified that both accused no.3 and
4 did not take part in assaulting
him. He was unable to dispute
that accused no.4 had been forced into being present when all of that
was happening.
He confirmed that accused no.3 and 4 were
present at Lindile locality but did not assault him.
[26] It is noteworthy
that on his evidence, Bulelani watched from his bedroom as Avela was
being attacked with harmers and spades
and other dangerous weapons.
He did not go to try and save Avela. Neither did he run away.
He waited in his bedroom,
watched as Avela was being attacked and saw
all the accused and two other men attack Avela. He only ran
away when they came
to his bedroom. Furthermore, he testified
that he saw accused no.3 and 4 for the first time when he and Avela
were being
attacked. No identity parade was held and he did not
describe how he was able to identify them as he saw them for the
first
time that day. There was no attempt by the state to clear
any possibility of a mistaken identity as far as accused no.3 and
4
were concerned.
[27] The state’s
next witness was Bulelani Makhalima, a police officer who was called
to testify on counts 9 and 10, the kidnapping
and murder of
Gcinikhaya Canzibe. He testified that on 15 October 2010 he and
sergeant Booitjies received information that
there was a dead person
near Tyumbu Bridge. They went there and found the deceased with
stab wounds. They were informed
by a young man who was herding
sheep that he saw a group of people assaulting the deceased and
leaving him there. He
and his colleagues called crime
scene photographers and the detectives. That body had 37 stab
wounds. The deceased
was identified as Gcinikhaya Canzibe.
I must mention that this and Ayavela Mhlola are the only witnesses
which were called
by the state on counts 9 and 10. It
remains unclear how the state hoped to prove the guilt of the accused
on their
evidence. More about Ayavela Mhlola’s evidence
later.
[28] In respect of count
11, the murder of Malusi Filiya (Malusi) the state called warrant
officer Mphuthumi Kopana, a police officer.
He testified that
on 14 October 2010 he and warrant officer Boyana were on duty.
They received information that a person
had been shot dead at Tyumbu
locality in Mthatha. They went to that crime scene and found
the deceased in a flat. He
had a gunshot wound above the
stomach. The next state witness was Ernest Khawula, also a
police officer and an investigating
officer in respect of two of the
murders in this case. He testified that a taxi driver was
killed when he was being robbed
and four men were arrested for his
murder. This was in September 2009. One of the men who
were arrested for the murder
of the taxi driver was Gcinikhaya
Canzibe, the deceased in counts 9 and 10. He was arrested with
Avela and Thuso.
[29] When they were
released on bail both Gcinikhaya Canzibe and Thuso Solani were
killed. The home of Bulelani was burnt
down after Avela went to
hide at his homestead. Following the burning down of his
homestead, Bulelani went to stay at his
father’s other
homestead. This lead to the killing of his brother Malusi who
was shot at. The killers believed
him to be Bulelani as he
normally slept in that room in which Malusi was killed.
[30] He testified that
their investigation led to the arrest of accused no.1. Under
cross examination on behalf of accused
no.1 he testified that he had
no other evidence on which he arrested accused no.1 except the
information he received from family
members. He further
testified that no witness said they had seen accused no.1 shooting
the deceased Malusi Filiya.
His information from his witnesses
was that accused no.1 was seen carrying a firearm. Once more
this and Phelo Dikana were
the only witness called in respect of
count 11. I do not understand how it could ever have been hoped
that there could be
a conviction on the evidence of warrant officer
Kopana and Phelo Dikana. Save for the
ipse dixit
of
Phelo Dikana, there was just no other evidence led in corroboration.
[31] The next witness for
the state was Eric Mzimasi Gomana, a warrant officer and a member of
the South African Police Services.
He testified that he was on
duty on 10 October 2010 with other police officers. He received
a call that a dead body had been
found at Tshemese locality in
Mthatha. He proceeded to the said crime scene where he found
two police officers already there
standing next to a fence of a
mealie field. Those police officers told him that a dead person
had been found in the veld.
[32] They took him to
where the deceased person was. He observed that the deceased
could not be identified and his leg was
missing probably due to
scavengers. Even the members of the community could not
identify the deceased. No crime scene
photographs were taken
and the body was removed to a mortuary.
[33] The state called its
next witness Phelo Dikana on count 11, the murder of Malusi Dikana.
He testified that he only knew
accused no.1 from Tyumbu locality.
On 14 November 2010 he was at his house in Tyumbu locality where he
stayed with his family,
his parents and siblings. His siblings
are Bonile and Bulelani Dikana. On the 14 November 2010 at
about 22:00 that
night he was watching TV in his bedroom when he
heard a gunshot which he did not at that stage think it was in his
premises.
He reduced the volume of the TV and heard a second
gunshot and realized that the shooting was actually in his premises.
[34] He went outside to
check and noticed accused no.1 and about five other men getting out
of the gate. Next to the room
where he heard the gunshots there
was light which enabled him to notice accused no.1 and those men.
He went to the room where
his elder brother slept and tried to push
open the door. However, the door was blocked. He left the
door and went in
between the houses and saw accused no.1 whom he
already knew from the area. He went to wake up his parents in their
room.
He told them that something had happened in Malusi’s
room.
[35] He then went out of
the gate to follow those people to see if he could identify the
others as he had already identified accused
no.1. He went and
stood next to a shop called Joko but could not see the other people
but he saw accused no.1, who together
with the other people in his
company got into a quantum vehicle which then drove off with its
lights switched off. The lights
of the quantum vehicle were
only switched on when it reached the tarred road. When he
returned home he noticed that his brother
Malusi had been shot dead.
He noticed that the shots that killed Malusi had been fired through
the window.
[36] He testified that
when he saw accused no.1 walking towards the gate he was carrying a
firearm. He did not know the motive
for the killing of his
brother Malusi. Under cross examination he was asked that if
the room in which Malusi slept was next
to the gate as he had
testified, it would not be necessary for the people he said he saw to
go past his room, he said he would
not be able to answer that.
Before and after the shooting he did not notice whether his older
brother Bulelani was there
or not as he was focusing on the people
who shot Malusi. After the shooting when the killers had gone
he did not see Bulelani.
He later changed to say he saw him in
the premises.
[37] He did not talk to
Bulelani about the fact that he had seen accused no.1 whom they both
knew very well in the locality.
After he heard the
gunshots and saw those people leaving the premises and Malusi’s
door could not open, he assumed that he
was shot. He could hear
that he was in pain inside the room and he followed the shooters in
order to identify them.
[38] On counts 9 and 10
the kidnapping and murder of Gcinikhaya Canzibe, the state also
called Ayavela Mhlola. He testified
that on 10 October 2010 he
was at his workplace at Tyumbu locality where he is a headman.
He was with other people below
the kraal when he noticed the light of
a motor vehicle coming. The door of the vehicle was opened and
somebody screamed.
They could hear that the person was being
assaulted. They all went to the houses to report what they
saw. They all
later went up to where the person was found and
saw the person lying down there.
[39] Police were called
and they came and they noticed that the person was dead. When
the people from forensic services came,
they noticed that the
deceased had stab wounds on his chest and his right eye was not
there. The vehicle they had seen earlier
was a white quantum.
He could not identify the people who assaulted the deceased as it was
dark and they were at a distance.
He also did not know the
registration number of the vehicle they were using. I do not
understand what the purpose of calling
this witness was as he clearly
said he could not identify the people who murdered Gcinikhaya
Canzibe.
[40] A J88 medico-legal
examination of Bulelani Dikana completed by Dr Mkombe was admitted as
an exhibit. It was completed
and signed by Dr Mkombe at 10:49
on 20 October 2010. His clinical findings recorded that
Bulelani had been assaulted with
a bushknife on the hand and back.
No mention in it is at all made of any poisoning or possible
poisoning in light of the
fact that he had testified to having been
fed poisoned juice which caused him to vomit blood.
[41] The medico legal
report in respect of Thuso Solani was completed by Dr Notyalwa on 14
October 2010. He reported therein
that the cause of death was
decomposed body and scavenger bites. He also recorded that the
body of the deceased was found
or death occurred on 10 October 2010.
There was no attempt at explaining the cause of death in relation to
what Bulelani
had said had happened in his evidence.
[42] With this evidence
and some exhibits that were just handed up by agreement, the state
closed its case. I must mention
that when the state closed its
case the original counsel for the state Advocate Trietch was not
available due to a personal commitment.
Advocate Joubert had
agreed to take over the matter at short notice and immediately
expressed his personal misgivings about the
state’s case and
indicated that he would assess his position on whether it would be in
the interest of justice to try and
call further witnesses. He
later reported to court that indeed the state had decided to close
its case. At that stage
it was also reported and confirmed that
accused no.2 had died. Mr Lavisa legal representative for
accused no.3 and 4 had
also died and was replaced by Mr Sonqwelo on
legal aid instructions.
[43] The defence applied
for a discharge of the accused on all counts. In summary, the
basis for the application was that
there was no evidence on which a
reasonable court could convict and the credibility of some of the
state witnesses was extremely
questionable.
[44]
Section 174
of the
Criminal Procedure Act provides
:
“
If
at the close of the case for the prosecution at any trial, the court
is of the opinion that there is no evidence that the offence
referred
to in the charge or any offence of which he may be convicted on that
charge, it may return a verdict of not guilty.”
[45] I must point out
that it is with a deep sense of appreciation that counsel for the
state, Mr Joubert made an upfront concession
that the presentation of
the state’s case left much to be desired. The record
reflects that the evidence of the state
was, at best, disjointed with
the only two witnesses who directly implicated the accused, Bulelani
and Phelo Dikana being so contradictory
as to be rendered totally
incredible and of no evidential value. It is not clear why the
state decided to proceed with the
case which had not been
investigated at all by the police in more than seven years. The
matter was enrolled in this court
for the first time on the 08
December 2014. Since then there have been numerous
postponements for reasons that are not clear.
[46] The matter was
eventually enrolled for trial on 02 May 2018 almost eight years after
some of the incidents. Indeed the
matter did in fact proceed on
that date. The list of witnesses provided by the state in terms
of
section 143(3)
of the
Criminal Procedure Act reflected
some 32
witnesses. Most of those witnesses were police officers and
those who were called gave evidence that did not prove
anything more
than the undisputed fact that the deceased had died. Most of
the evidence by the police officers was in the
form of crime scene
evidence which was more of a report that a deceased person was found
at a particular place. There was
no evidence of anything that
was found at the various crime scenes and in some cases crime scene
experts were not even called to
look for evidence at the crime
scenes.
[47] I must point out
that on the evidence of the state there were also two witnesses, the
complaint Bulelani Dikana and Phelo Dikana,
who are brothers to each
other and are both brothers to the deceased in count 11, Malusi
Dikana. It transpired from their
evidence and that of the
investigating office Ernest Khawula that the death if a taxi driver,
led to the arrest of some of the
deceased in this case who, when
released on bail were then killed, allegedly, by the accused,
attempted murders in this matter
were also apparently part of the
attempt to kill all those who had some involvement directly or
otherwise in the murder of that
taxi driver. There were also
unsubstantiated allegations of drug peddling in the taxi industry
which it seemed, might also
have been a motive for the killings.
[48] Despite the fact
that the kidnapping of Bulelani and the subsequent murder of at least
one of the deceased, Thuso Solani took
place in broad day light in
the presence of many people, the investigation of the case seems not
to have happened at all as was
the case with all the other murders.
The evidence of the complainant Bulelani Dikana and his brother Phelo
Dikana was characterized
by an attempt not to honestly tell the court
what happened on the 10 October 2010. It was more of the trial
being used by
them to avenge at all cost the suffering they obviously
went through, the loss of property through Bulelani’s homestead
being
burnt to the ground and the killing of their brother Malusi and
the killing of Thuso Solani and the attempted murder of Avela Tuswa
who was never called to testify.
[49] In presenting the
evidence the state made no attempt to lead its witnesses to present
credible evidence in a coherent manner.
In fact it is not clear
to me if the state had any hope of a successful conviction from the
start of the trial to the end as there
seemed to have been very poor
if any preparation was done. This calls into question the basis
on which the state decided
to proceed with the trial some eight or so
years later without any thorough preparation. It seems to me
that the matter needed
to be assessed afresh as against merely
executing a decision to prosecute taken almost 10 years earlier.
Since then some
of the witnesses could have died or could not be
traced all of which needed an honest and dispassionate assessment of
the case.
I must thank Mr Joubert, who although he got involved
very late in this matter, realized that calling other witnesses would
be
flogging a dead horse.
[50] This is not to say
that some or all of the accused were not involved in some of the
crimes. If some of the questions
put by their defence counsel
on their behalf is anything to go by, it is clear that they might
have been involved in some way.
Also their versions again put
to the state witnesses suggested that they might in fact have been
directly involved in some of the
crimes in differing degrees.
However, at the risk of stating the obvious, their presence at
various crime scenes even if
proved, or not disputed cannot, without
more, amount to evidence on which a conviction can follow.
[51] In
S v Majavu
1994 (2) SACR 265(Ck)
at 275 Heath J invoked some of the old
principles of criminal prosecution from English jurisprudence which,
in my view, still find
application. He cited the case of
Boucher v The Queen
CCC 203 ([1955] SCR 16; 20 CR1) where the
court said:
“
It
cannot be over-emphasized that the purpose of a criminal trial
prosecution is not to obtain a conviction; it is to lay before
a jury
what the Crown considers to be credible evidence relevant to what is
alleged to be a crime. Counsel have a duty to
see that all
available legal proof and facts is presented: It should be done
firmly and pressed to its legitimate strength, but
it must be done
fairly. The role of prosecutor excludes any notion of winning
or losing; his function is a matter of public
duty than which in
civil life there can be none charged with greater personal
responsibility. It is to be efficiently performed
with an
ingrained sense of dignity, a seriousness and justness of judicial
proceedings.”
[52] In this case there
was no attempt by the state to present
credible evidence
nor
was
all available legal proof and facts presented
, nothing was
done firmly
nor was anything
pressed to its legitimate
strength
. Evidently there was no attempt to show the
seriousness and justness of judicial proceedings
by the state
or the pursuit of the case
with an ingrained sense of dignity
.
[53] Other than the poor
and I emphasize, the extremely poor quality of the evidence presented
by the state, even the documentary
evidence was just handed up, not
to prove anything. There was no attempt to create some
nexus
between the evidence presented by the state witnesses and the
documentary evidence. If anything the state proved that people
died a gruesome death, which was not in dispute. It was also
proved that the accused had a motive to kill the deceased which
is
hardly relevant for a conviction, without credible evidence of the
accused’s actual involvement and participation in the
crimes.
The state sought to rely on witnesses who did not give evidence of
what happened but their own conclusions of what
happened generously
drenched in inconsistencies and contradictions. No attempt was
made to deal with a very important matter
of the doctrine of common
purpose which had been invoked by the state.
[54] In
S v Lubaxa
2001 (2) SACR 703
(SCA) the court said:
“
[18]
I have no doubt that an accused person (whether or not he is
represented) is entitled to be discharged at the close of the
case
for the prosecution if there is no possibility of a conviction other
than if he enters the witness box and incriminates himself.
The
failure to discharge an accused in those circumstances if necessary
mero
motu
,
is in my view a breach of the rights that are guaranteed by the
Constitution and will ordinarily vitiate a conviction based
exclusively
on his self-incriminatory evidence.
[19] The right to be
discharged at that stage of the trial does not necessarily arise, in
my view, from considerations relating
to the burden of proof (or its
concomittant, the presumption of innocence) or the right of silence
or the right not to testify,
but arguably from a consideration that
is of more general application. Clearly a person ought not to
be prosecuted in the
absence of a minimum of evidence upon which he
might be convicted, merely in the expectation that at some stage he
might incriminate
himself. That is recognized by the common law
principle that there should be ‘reasonable and probable cause
to believe
that the accused is guilty of an offence before a
prosecution is initiated (
Beckenstrater v Rottcher and Thennisson
1955(1) SA129 (A) at 135 C-E) and the constitutional protection
afforded to dignity and personal freedom (s10 and s 12) seems to
reinforce it. It ought to follow that if a prosecution is not
to be commenced without that minimum of evidence, so too should
it
cease when the evidence finally falls below that threshold.
That will pre-eminently be so where the prosecution has exhausted
the
evidence and a conviction is no longer possible except by
self-incrimination. A fair trial, in my view would at that
stage be stopped, for it threatens thereafter to infringe other
constitutional rights protected by s 10 and s 12.”
[55] In this case the
evidence of the state was hopelessly poor beyond redemption when the
state closed its case. Were I to
allow the case to proceed
beyond this point, it would be only on the unconstitutional basis
that the accused might incriminate
themselves if they elected to
testify. Such an injudicious exercise of a discretion would
amount to a court embarking on
a fishing expedition in the vain hope
of resuscitating a case that had been dead from the start. I
hope that it was never
the hope of the state that the accused might
incriminate themselves when the proceedings commenced on the 18 May
2018. If
it was the case and I sincerely hope it was not, the
state would be using its machinery and its powers of prosecution for
an unconstitutional
motive, not to discharge its duty but to pursue
an unconstitutional outcome. Each case must be thoroughly
investigated and
professionally presented so that courts are enabled
to discharge their responsibility effectively and are not called upon
to decide
cases that had not been investigated. The state made
no attempt, let alone serious attempt to achieve a just outcome.
This was a costly travesty of justice at its best which obviously
reinforced the sense of impunity in some of the violent crimes
in
this country.
[56] In the result the
following order shall issue:
1. The application in
terms of
section 174
of the
Criminal Procedure Act is
granted.
2. The accused are found
not guilty and discharged.
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearances:
Counsel for the State:
D.TRIETCH
Instructed by: NPA
MTHATHA
Counsel for accused NO.1:
E.S. DINGISWAYO
Instructed by: LEGAL AID
BOARD
MTHATHA
Counsel for Accused No.2:
A. NOHIYA
Instructed by: LEGAL AID
BOARD
MTHATHA
Counsel for Accused no.3
and 4: E.B. SONQWELO
Instructed by: LEGAL AID
BOARD
MTHATHA
Heard on: 07 May 2019
Delivered on: 05July 2019