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[2019] ZAECELLC 27
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S v Daniso and Others (CC59/2018) [2019] ZAECELLC 27 (9 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTEN
CAPE LOCAL DIVISION – EAST LONDON
Case
No: CC 59/2018
In
the matter between:
THE
STATE
vs
SIZIWE
NOMVELISO DANISO
ACCUSED 1
VUYOKAZI
NOMPUKU MAPIKATA
ACCUSED 2
NOMFUNEKO
MJINGANE
ACCUSED 3
PHELISA
NOVELO SHOTANA
ACCUSED 4
NOSICELO
WEWE
ACCUSED 5
NOMVUYO
QAWE
ACCUSED 6
ZWELIXOLILE
NKOHLA
ACCUSED 7
PHELISWA
NOBAMBAPHA VAKELE
ACCUSED 8
KHANYISA
MBANDAYI VUMANI
ACCUSED 9
MAKAZIWE
NOSAKHELE BONTE
ACCUSED
10
SAKHUMZI
KOSHE
ACCUSED 11
SINETHEMBA
MABHUTI DEYZANA
ACCUSED 12
LUBABALO
MPITIMPITI
ACCUSED
13
LUSANDA
DEYZANA
ACCUSED
14
MAKHI
SAM
ACCUSED 15
BONKE
LUDIDI
ACCUSED
16
JUDGMENT
MALUSI
J
:
[1]
The fifteen (15) accused appear before this court on four (4)
counts. The counts
are set out in the indictment as follows:
1.1
COUNT
1:
MURDER
In that on or about
the 24
th
day of August 2017 and at or near Reeston, East
London, in the district of East London, the accused unlawfully and
intentionally
killed
Nonkululeko Matiwane
, an adult female
person.
1.2
COUNT 2:
ARSON
In that at the time and
place mentioned in count 1, the accused unlawfully and with intent to
injure
Nokulunga Matiwane, her family and other people
in
the houses,
set on fire two houses, a garage and a shack,
being immovable properties of the said
Nokulunga Matiwane
or
properties in her lawful possession.
1.3
COUNT 3:
MALICIOUS INJURY TO
PROPERTY
In that at the time and
place mentioned in count 1, the accused unlawfully and intentionally
damaged the property as per attached
annexure, the property or in the
lawful possession of
Nokulunga Matiwane,
by burning it with
fire and throwing stones at it.
1.4
COUNT 4:
PUBLIC VIOLENCE
In
that at the time and place mentioned in count 1, the accused and
divers other people unlawfully assembled with common intent
forcibly
to disturb the public peace or security or to invade the rights of
other persons by blockading the road leading to Nokulunga
Matiwane’s
home with stones and burning objects, throwing stones at the fire
brigade vehicles and its occupants, throwing
stones at the people and
properties inside Nokulunga Matiwane’s home and also
threatening and attempting to kill people in
Nokulunga Matiwane’s
home.
[2]
All the accused pleaded not guilty to all the charges. They
elected to exercise
their right to silence as provided in the
Constitution.
[3]
All the accused made admissions in terms of
section 220
of the
Criminal Procedure Act 51 of 1977
. The admissions related to
the chain evidence on how the deceased body was handled from the
crime scene to the conduct of
the post mortem examination by Doctor
Zondi and the post mortem report;
3.1
The photographs of the scene of crime taken by Constable Zingayi;
3.2
The photographs of the crime scene taken by Warrant Officer Abram;
3.3
The forensic report by Captain Ramsundar relating to concrete and a
plastic bottle from
the crime scene;
3.4
The medical report by Doctor Sokhupha relating to an examination of
Luthando Makhwenkwe
Matiwane on 24 August 2017.
[4]
There was no opening address by the State counsel. The outline
of the State
case was reflected in the summary of substantial facts
attached to the indictment.
[5]
All the accused were legally represented. Accused 1, 3, 6, 8,
13, 14, 15 and
16 were represented by Ms Dyantyi. Accused 2, 4,
5, 7, 9 10, 11 and 12 were represented by Mr Mhlaba. During the
course
of the trial on 31 March 2019 accused 4, Phelisa Shotana
passed away. For convenience sake the Court directed that the
numbers
allocated to the accused would not change as evidence had by
that stage been led and it would have caused confusion to reassign
the numbers to the accused.
[6]
The evidence relating to the events on the fateful day, 24 August
2017 is largely
not in dispute. It is acknowledged that the
well-established approach to break down the evidence into its
component parts
is a useful aid in understanding and evaluating a
body of evidence. For a better understanding of the issues in
casu
it is necessary to first consider the mosaic of evidence though not
slavishly adopting a broad and indulgent approach.
[1]
[7]
The background evidence indicates that there was a contestation
between essentially
two factions within the African National Congress
in Ward 13 leading in the Buffalo City Municipality up to the 2016
Municipal
elections. The contestation related to who was to be
nominated as the ANC candidate for Ward 13. The Ward includes
the settlement of Reeston. It appears that after a fierce
contest the complainant in these proceedings, Nokulunga Matiwane,
prevailed and was nominated as the ANC candidate in the aforesaid
elections. Accused 1
(Daniso)
was the leader of the
opposing faction which contested Matiwane’s nomination.
Matiwane was duly elected as the Ward
13 councillor.
[8]
For some reasons which are not necessary for present purposes it
appears the ill-feeling
between the two main factions did not
dissipate after the elections. The problems within the Ward 13
ANC branch caused higher
structures of that organisation to intervene
in some way according to the contentions put up by the defence and
disputed by Matiwane.
[9]
In that cauldron of resentment, on the morning of 24 August 2017 the
residents of
Reeston woke to the news that two (2) traditional
healers, Mrs Mpitimpiti and one MamBamba had been killed. It
was alleged
that Mr and Mrs Matiwane were the suspects in the murder
of the two (2) traditional healers. They were arrested by the
police
as suspects. Four of the State witnesses who were close
to Matiwane converged at her residence on hearing the news of the
murder and her arrest.
[10]
The evidence discloses that community meetings were convened in
Reeston by a whistle being blown.
At about noon on that fateful
day the whistle was blown and members of the community converged near
the community hall. A
chaotic meeting ensued wherein a
resolution was taken to set on fire the Matiwane residence.
This was despite the protestations
of Ncumisa Melana, the immediate
past ward councillor, for the community not to take the law into
their own hands. A crowd,
ranging in estimates from more than
50 to more than a 100 people, proceeded from the meeting towards the
Matiwane residence.
Along the way their numbers were swelled by
other community members who joined the crowd.
[11]
The evidence indicates that the crowd was engaged in that
particularly South African speciality,
the toyi-toyi on their way to
the Matiwane residence. Before the crowd arrived at the
residence, the occupants of the Matiwane
residence were forewarned by
at least two women that the crowd was on its way to attack the
residence. On their arrival at
the perimeter fence of the
residence the crowd pushed down the main gate to gain entry. A
number of State witnesses testified
that each of them had identified
some of the accused as being part of the crowd that was standing at
the gate before it was pushed
down.
[12]
The evidence discloses that Ntombikho Mkoko, Nontsuku Mkwambi,
Andiswa Jozana and Thandiwe Dikani
were seated in the patio adjacent
to the kitchen exit door in the Matiwane residence. When the
crowd assembled at the perimeter
fence started throwing stones at the
main house in the Matiwane residence the four women aforementioned
ran into the kitchen and
closed the door behind them. Andiswa
Jozana while standing near the door realised that the attackers had
poured petrol which
was sipping under the kitchen door. She
then opened the door and tried to push open the burglar gate. A
struggle ensued
over the burglar gate between Mkoko, Mkwambi and
Jozana on the one hand and allegedly accused 16 and 13 on the other
hand.
It was alleged that the two accused drenched Mkhwambi and
Jozana with petrol. Mkwambi and Jozana eventually managed to
escape
through the kitchen door. It was alleged that accused 16
and 13 set alight the petrol that was poured at the kitchen exit
door.
[13]
Various state witnesses testified that whilst the deceased, Mkoko and
Aviwe Matiwane were inside
the house a number of the accused
proceeded to break the windows to the house and poured petrol into
the house setting it alight.
Aviwe Matiwane testified that
after dousing the flames at the kitchen exit door he managed to
escape and stood next to the wall
of the second house in the
property, more or less in the vicinity of the kitchen exit door of
the main house. He allegedly
observed accused 1, 5, 12 and 13
pick up the deceased from the patio where she had earlier fallen with
Mkoko. The four allegedly
returned the deceased into the
rondavel of the burning main house. This version was
corroborated by Mihle Finishi.
Nomthandazo Dyabana took the
version further and alleged that accused 12 and an unknown man called
Lunga held the deceased down
on a chair whilst accused 13 forced the
deceased to drink petrol. She stated that she saw accused 1 and
5 appear from the
crowd as the flames engulfed the deceased.
[14]
Various state witnesses alleged that they saw some of the accused set
fire on the vehicles parked
in the property. Luthando Matiwane
alleged that two of the accused tried to drag him into the inferno
and when they failed
they assaulted him causing two of his teeth to
fall out.
[15]
At the close of the State case, Ms Dyantyi on behalf of the accused
she represents applied for
their discharge in terms of section 174 of
the Criminal Procedure Act 51 of 1977
(the Act)
. The
basis of the application was that the evidence tendered by the State
was not sufficient to carry a conviction.
She correctly
conceded that the fact of the attack on the Matiwane residence was
common cause. She submitted that what was
at issue was the
identity of the attackers. She submitted that the reliability
of the observations and identification by
the State witnesses was
highly questionable.
[16]
Mr Mhlaba on behalf of the accused he represents indicated that he
did not wish to apply for
their discharge but intended to call all of
them to testify in their defence. The Court, as it is obliged
to do by binding
precedent,
mero
motu
placed at issue the discharge of those accused represented by Mr
Mhlaba as I had the
prima
facie
view that the evidence against them was poor and may not lead to
their conviction if they did not to testify.
[2]
[17]
Mr Zantsi, who appeared on behalf of the State, opposed the discharge
of all the accused.
He submitted that most of the State
witnesses who identified the accused as having been part of the crowd
had previous knowledge
of the accused. He argued the State had
tendered sufficient evidence to identify the accused as part of the
crowd of attackers.
He submitted that a holistic reading of the
indictment and the annexures thereto clearly indicate that the State
relied on the
doctrine of common purpose. As such if the
accused were identified as being part of the crowd they were liable
for all the
acts that were committed by members of the crowd.
[18]
Section 174 of the Act provides that:
“
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 accused
committed the
offence referred to in the charge or any offence of which he may be
convicted on the charge, it may return a verdict
of not guilty.”
[19]
The leading authority on this section in the Constitutional era is
Lubaxa
where it was stated:
“
[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 concomitant, 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 recognised 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 and the constitutional protection afforded to dignity
and
personal freedom (s 10 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.
[20]
The same considerations do not necessarily arise, however, where the
prosecution’s case against
one accused might be supplemented by
the evidence of a co-accused. The prosecution is ordinarily
entitled to rely upon the
evidence of an accomplice and it is not
self-evident why it should necessarily be precluded from doing so
merely because it has
chosen to prosecute more than one person
jointly. While it is true that the caution that is required to be
exercised when evaluating
the evidence of an accomplice might at
times render it futile to continue such a trial that need not always
be the case.
[21]
Whether, or in what circumstances, a trial court should discharge an
accused who might be incriminated
by a co-accused, is not a question
that can be answered in the abstract, for the circumstances in which
the question arises are
varied. While there might be cases in
which it would be unfair not to do so, one can envisage circumstances
in which to do
so would compromise the proper administration of
justice. What is entailed by a fair trial must necessarily be
determined
by the particular circumstances.”
[3]
[20]
What is at issue in this case is not whether the accused were
identified by the various State
witnesses. The issue for
determination is the reliability of the identification by the State
witnesses of the accused as
having been part of that crowd and
perpetrated the acts alleged by the State witnesses.
[21]
It is trite that due to the inherent fallibility of human observation
and memory, the evidence
of identification should be approached with
caution as it is dangerously unreliable. It is not so much the
question of whether
the identifying witness is sincere, honest or
even confident about the identity of the person he or she
identified. A Court
has to be satisfied that the evidence is
reliable and further that every possibility of an honest but mistaken
identity has been
eliminated.
[4]
[22]
The Appellant Division as it then was stated that the correct
approach to evidence of identification
was the following:
“
It has been
stressed more than once that in a case involving the identification
of a particular person in relation to a certain
happening a Court
should be satisfied not only the identifying witness is honest but
also that his evidence is reliable in the
sense that he had a proper
opportunity in the circumstances of the case to carry out such
observation as would be reasonably required
to ensure a correct
identification: The nature of the opportunity of observation which
may be required to confer on an identification
in any particular case
the stamp of reliability depends upon a great variety of factors or
combination of factors for instance
the period of observation, or the
proximity of the persons, or the visibility of state of the light, or
the angle of the observation,
or prior opportunity or opportunities
of observation, or the details of any such prior observation, or the
absence or presence
of noticeable physical or facial features, marks
or peculiarities, or the clothing or other articles such as glasses,
clutches
or bags, etc, connected with the person observed and so on
may have to be investigated in order to satisfy a court in any
particular
case that an identification is reliable and trustworthy as
distinct from being merely bona fide and honest. The necessity
for a Court to be properly satisfied in a criminal case on both these
aspects of identification should now, it may be thought,
not really
required to be stressed; it appears from such a considerable number
of prior decisions; . . . The often patent honesty
sincerity and
conviction of an identifying witness remains, however, even a snare
to the judicial officer who does not constantly
remind himself of the
necessity of dissipating any danger of error in such evidence.”
[5]
[23]
The reliability of the identification by the various State witnesses
in this case was very poor
and in my view fell below the threshold.
Mkoko stated that accused 1, 2, 3, 5, 6, 7, 8, 9, 10 and 12 were
known to her prior
to this incident. She provided no attributes
or peculiar features which would imbue her identification of the
aforementioned
accused as having been the people she saw on the scene
of crime on that fateful day. Accused 13 and 16 were strangers
to
her on the date of the incident. Likewise she gave no
physical attributes or peculiar features on the day which would
render
her evidence reliable. Accused 13 and 16 were strangers
whose description by Mkoko falls below the threshold. She only
noticed that accused 13 wore a school uniform and carried a spade.
Under cross-examination she conceded that it was
not stated in her
police statement that accused 16 wore his hair in a dreadlocks.
[24]
Andiswa Jozana previously knew accused 1 and 12. She gave no
description of their physical
attributes or peculiar features to
bolster the reliability of her identification that these accused were
at the Matiwane residence.
Accused 5, 13 and 16 were strangers
to her. She gave evidence that accused 5 was a chubby woman
wearing a t-shirt and a denim
skirt. Under cross-examination it
was pointed out to her that in her police statement she only stated
that ‘
there was a lady with a dark complexion’
.
This is obviously a generic description that can fit innumerable
people. She identified accused 16 due to his face,
his built
and the dreadlocks made her certain that it was him. She said
it was a young man, slender built, light complexion
and wearing
dreadlocks. She described accused 13 as being a male, slender
built, light complexion and clothed in full school
uniform. It
is manifest that the description of both accused 13 and 16 is wholly
unreliable as it amounts to dock identification.
It is of
crucial importance that both accused 13 and 16 were not described in
Jozana’s statement to the police. The
description
provided in Court was clearly made with both accused in her clear
view.
[25]
Zameka Madyumdyum testified that accused 1, 2, 3, 7, 8 and 10 were
known to her before the incident.
Except for accused 1 no
description of the physical attributes or peculiar features of the
aforementioned accused on the day were
provided by this witness.
Regarding accused 1 she testified that she wore her hair in
dreadlocks bound in a bunny at the
back of her head. This is a
wholly unreliable identification of these aforementioned accused by
this witness. Madyumdyum
testified that accused 12 and 13 were
strangers to her on the day. Accused 12 was described as a
young man, dark in complexion
and wearing a black ankle length coat.
Accused 13 was described as a young man light in complexion, wearing
a brown school
track top and grey school trousers and a white shirt.
Both descriptions of accused 12 and 13 are wholly unreliable for lack
of physical attributes and peculiar features. Again there were
numerous discrepancies between Maduymdyum’s police statement
and her evidence in Court on identification.
[26]
Nomthandazo Dyabana identified accused 1 and 5 as two unknown females
who emerged from the crowd.
She gave no description whatsoever
of either accused. She testified that she just heard the name
Mabhuti being shouted and
such a person is unknown to her and she is
unable to identify him. This does not pass muster as an
identification and is
entirely unreliable as Mabhuti is notoriously a
popular name. Dyabana testified that she knew accused 13 very
well as she
resided with him for a considerable period whilst
undergoing training as a Sangoma by accused 13’s mother.
[27]
Although credibility plays a limited role in the exercise of a
discretion in an application for
a discharge, I am of the view that
Dyabana’s evidence regarding accused 13 was so poor that this
Court may not rely on it.
The main criticism is that though she
claims to have witnessed accused 12 and 13 involved with the State
witnesses on the patio
adjacent to the kitchen exit door the place
where she was purportedly standing is obscured from where the action
took place.
Under cross-examination it was pertinently pointed
out that her evidence is at variance with her police statement.
[28]
Her demeanour while testifying was that of a very uncomfortable
person. It appeared to
me that she was deliberately misleading
the Court and her evidence was littered with gross fabrications.
The worst of these
fabrications was that accused 12 and a Lunga held
the deceased on to a chair whilst accused 13 forced her to drink
petrol.
This was at odds with all the other evidence which
indicated that at the time she says this force feeding of the
deceased took
place the house was already engulfed in flames. I
find her evidence to be of no probative value due to the numerous
exaggerations
in it. I am unable to distinguish in her evidence
the truth and the fabrications. In such circumstances I am
obliged
to reject her evidence.
[29]
Sivuyile Rululu testified that he knew accused 1, 5, 9, 10, 11, 12
and 14 before the incident.
He provided no description of the
aforementioned accused on the fateful day to lend reliability to his
identification.
[30]
Emihle Asiphe Mabuya testified that she knew accused 12 before the
incident. She provided
no description of the accused on the
fateful day. She testified that accused 11 was light in
complexion, had a bigger body
and was an African older male.
Accused 9 was described by Emihle as a young male of slender built
with a dark complexion.
Emihle conceded that accused 13 was a
stranger to him and on the fateful day the accused was in grey
trousers. She described
accused 15 as a father figure
(‘tata’),
light skinned, middle weight and had seen him once before the day of
the incident. All these descriptions do not lend reliability
to
Emihle’s identification of the aforementioned accused amounted
to dock identification and accused before her.
[31]
Mihle Finishi described both accused 1 and 5 as strangers to her whom
she recognised each by
their respective faces as she ‘
saw
their faces and can see it was them’.
This does not
even qualify as a proper identification let alone a reliable one.
She testified that accused 9, 10, 12
and 14 were known to her before
the day of the incident. She gave no physical attributes or
appearance and peculiar features
on the day of the incident which
made her realise that it is the people she knew previously.
This renders her evidence unreliable.
Both accused 13 and 16
were strangers to her on the day. She described accused 13 as a
young man, light in complexion and
wearing grey school trousers.
She later made enquiries after the incident and was told that he was
Mpitmpiti’s son.
Accused 16 was described as a young man
in a black jacket. She stated that she recognised him ‘
because
I saw him, I remember his face’.
Clearly the
identification of both accused 13 and 16 is unreliable as no physical
attributes were identified by the witness
which can be said to be
distinct to each of the two accused.
[32]
Aviwe Matiwane described accused 1 as dark, of middle height, heavy
build and wears her hair
in dreadlocks. Accused 5 was described
as dark with short hair and heavy build. He described accused 7
as dark, not
tall with a big stomach. Accused 7 was a stranger
to Aviwe. Accused 10 was described as dark and not tall.
Accused
12 was described as dark in complexion and a bit tall.
Accused 13 was described as light in complexion, a bit tall and
wearing
grey school trousers. Accused 14 was described as dark
and not tall. Accused 15 was described as light in complexion,
a bald head, a tinted beard and a bit tall. Aviwe testified
that he could not recall the clothing accused 15 was wearing
on the
fateful day. It transpired under cross-examination that Aviwe
had mentioned only Mabhuti in his statement to the police.
He
is a minor child, 14 years of age and his evidence has to be treated
with caution. If I exercise caution and consider
the generic
descriptions he gave for the aforementioned accused his evidence is
clearly unreliable.
[33]
Luthando Matiwane identified accused 9 as someone he knew before the
fateful day. He described
him as the young man with a dark
complexion and medium build. He also identified accused 10, 12,
13 and 14. All the
aforementioned four accused were set to be
known to him but he gave no description whatsoever of any of them.
Luthando described
accused 15 as a male he knew before the fateful
day. He said accused 15 was light in complexion with a beard
that usually
is tinted red and has a bald head. When pressed
under cross-examination how he had identified any of the accused his
stock
answer was that God had told him these were the accused.
His answer has to be understood in the context that although he is
a
27 year old male his mind functions at a level of a 10 year old
child. It is trite that his evidence has to be treated
with
caution. I place no probative value on his evidence due to the
fact that he appeared to me to have been coached by someone
on what
evidence to give to the court. Due to his mental disability he
is particularly susceptible to influence. Whilst
giving
evidence he was faking being drowsy so as to induce an adjournment.
It became clear to me after a particular adjournment
that he had been
coached during the adjournment as his evidence took a sudden change.
I even directed Mr Zantsi to ensure
that he limited his contact with
anyone so that he may not be influenced in his evidence. I
reject his evidence in toto.
[34]
None of the accused has yet testified in this trial. Each of
the accused has instructed
the respective legal representatives to
indicate during the cross-examination of the various State witnesses
that each accused
denies being part of the crowd that attacked the
Matiwane residence. Each accused has proffered a defence of an
alibi.
[35]
Accused 1, 2, 5, 7 and 15 have indicated that their alibi will be
that at the time of the attack
they were in an ANC meeting at
Raynolds farm quite a distance away from the Matiwane residence.
Accused 3 and 13 have indicated
that they were at their respective
homes at time of the attack. Likewise accused 5 after 15h00,
accused 10 after 13h00, accused
12 between 14h00 and 15h00 have
indicated that they were also at home during those respective times.
Accused 8 has indicated
that she was at work engaged in her business
as a hawker selling meat at the time of the attack. Accused 9
has indicated
that he was in a completely different section of the
Reeston settlement called Burundi where he was working on cars.
Accused
10 has indicated that he was working as part of the expanded
Public Works programme until 13h00 and thereafter has indicated he
then went home. Accused 16 has indicated that he was at
Chip-Chip tavern when he heard that the Matiwane household was on
fire. On approaching the household he assisted Nomasomi, a next
door neighbour of the Matiwane’s whose house was illuminated
by
one of the burning cars next to Nomasomi’s house.
[36]
It is trite that where an accused defence is an alibi the State has
an onus to disprove or negate
beyond a reasonable doubt that alibi as
part of the burden of proving the accused guilt. According to
the common law where
an alibi is raised for the first time at trial,
then the Court, in determining whether the alibi is reasonably
possibly true may
take into account whether or not there has been an
opportunity for the State to investigate the alibi properly.
[6]
[37]
The correct approach to the evaluation of an alibi defence was set
out by Holmes AJA
(as he then was)
in the following terms:
“
The legal
position with regard to an alibi is that there is no onus on an
accused to establish it, and if it might reasonably be
true he must
be acquitted. But it is important to point out that in applying
this test, the alibi does not have to be considered
in isolation . .
. The correct approach is to consider the alibi in the light of
the totality of the evidence in the case
and the Court’s
impression of the witnesses.”
[7]
(Footnote
omitted).
[38]
It has been held that where a defence of an alibi has been raised and
the trial Court accepts
the evidence in support thereof as being
possibly true, it follows that the trial Court should find that there
is a reasonable
possibility that the prosecution’s evidence is
mistaken or false. There cannot be a reasonable possibility
that the
two versions are both correct.
[8]
[39]
Mrs Matiwane accepted under cross-examination that there is a
reasonable possibility that the
meeting at Reynold’s farm took
place though it was not authorised by ANC. Once that concession
was made it was incumbent
on the State to produce evidence that the
contention about the meeting was actually false. The State did
not do so.
Nor did it challenge any of the alibis raised by the
other accused by producing evidence to prove the alibis were false.
That remissness amounts to a failure by the State to present a
prima
facie
case.
[40]
The State was obliged before closing its case to investigate and
verify the alibis raised by
the accused. The alibis were first
raised during February 2019 at the start of this trial. After a
period of six months
has elapsed it appears the test has taken no
steps whatsoever to investigate the alibis raised by the accused.
The State
has amply resources at its disposal to conduct such an
investigation if it was so inclined. The feeble excuse by the
investigating
officer communicated from the Bar by Mr Zantsi that the
investigating officer has difficulties with transport is simply not
acceptable
and will not pass muster. The State Counsel will be
aware that it is his duty and in the interest of justice that all the
necessary steps be taken to ensure that the truth is told.
[41]
When the issue of investigating the alibis was raised with Mr Zantsi
he submitted that the State
is precluded from such an investigation.
He cited as authority for that submission
State v Masoka
2015
(2) SACR 268
(ECP) at para 14-18. The facts in Masoka are
clearly distinguishable from the case before this Court. The
prosecutor
in Masoka went behind the back of the defence and obtained
a statement from a defence witness during the trial. Such a
statement
was not disclosed to the defence until the accused in the
trial Court testified. It was only at that stage that the
accused
was confronted with a statement obtained from a defence
witness. In the matter at hand it appears to me various
witnesses
would be available to the State to verify the alibis put up
by the accused without breaching the confidentiality of the defence
cases of each of the accused. I do not understand Masoka to be
authority for the proposition that once an accused raises
an alibi
the State may not investigate such an alibi during the course of the
trial.
[42]
It is now settled law that an accused is entitled to raise an alibi
for the first time during
the trial.
[9]
It follows that if the accused raises an alibi during the trial the
State must be entitled to investigate such an alibi during
the course
of the trial. What was at issue in Masoka was the clandestine
manner in which the State investigated the alibi
and breach of
confidentiality which was held to be unfair to the rights of the
accused in that matter.
[43]
In my view the State is not expected to wait until the close of the
defence case before presenting
evidence obtained in investigating the
veracity of the alibi. In this case the State would have
struggled if not unsuccessful
in applying to re-open the State case
to present the evidence obtained after the close of the defence
case. The principles
applicable in an application for a
re-opening of the case are trite and in my view the State would not
have satisfied those requirements
due to the fact that it had known
about the alibis for six months before it closed its case.
[10]
[44]
Even if I were wrong in my findings on the above issues in my view
the State case is of such
a poor quality that this Court acting
reasonably would not convict the accused at the conclusion of these
proceedings. The
evidence of the State witnesses was riddled
with material contradictions which undermine the probative value of
the entire State
case. According to Mkoko whilst Aviwe was
fetching water from the bathroom to put out the flames the deceased
was on fire
in the dining room. Aviwe never mentioned the
deceased being on fire in the sofa. He also never stated that
he said
‘
I am giving up and leaving as I have been
assaulted’.
The latter statements were attributed to
Aviwe by Mkoko but he never confirmed them at any stage.
[44]
Mkoko alleged that accused 1, 2 and 4 were at the kitchen door
screaming that Aviwe must be assaulted
to stop him extinguishing the
flames. The aforementioned accused allegedly threw stones at
Aviwe, according to Mkoko.
Aviwe never mentioned any person
having attempted to stop him extinguishing the flames at the kitchen
door let alone stones being
thrown at him. Mkoko stated that
she and the deceased fell inside the kitchen floor before reaching
the exit door because
she was hit by accused 1 with a stone on her
collar bone. This evidence was contradicted by Aviwe who stated
that Mkoko went
out of the kitchen door with the deceased and fell
outside on the patio after being hit by accused 1. According to
this version
the deceased was returned inside the main house by
accused 1, 5, 12 and 15. Regarding the same incident Mihle
Finishi says
it was only accused 1 and 5 who carried the deceased
inside the main house from the patio with no mention of accused 12
and 15.
[45]
Mkoko stated that she retreated further into the house as the kitchen
floor and cabinets were
on fire. It was impossible for her and
the deceased to leave through the kitchen door after she had been hit
and fell down.
She stated that Aviwe met her and the deceased
inside the main house after they had been prevented by fire in the
kitchen from
leaving. Against the probabilities he left through
the flames in the kitchen unscathed if Mkoko were to be believed.
On the contrary Aviwe says he found flames only at the door which he
extinguished by throwing water from a basin and walked out
of the
house.
[46]
Mkoko testified that both Mkwambi and Jozana were drenched in petrol
poured by accused 13 and
16 whilst at the kitchen door struggling
over the burglar gate. On the contrary Mkwambi did not say she
was drenched with
petrol only stating that Jozana was drenched.
If Mkwambi had been drenched it begs a question why would she not
mention it
in her evidence. Furthermore, Jozana in her own
testimony did not mention that Mkwambi had been drenched with
petrol.
[47]
Mkoko testified that whilst running towards the side gate to escape
the fire and the attackers
she was directed by Mkwambi to go around
the garage to the opening in the fence. In contradiction of
this evidence Mkwambi
testified that whilst she was running towards
the back of the house she saw Mkoko inside the house breaking a
window and trying
to escape. She told Mkoko the house was on fire and
she must escape from the house. She made no mention of
directing Mkoko
to an opening in the fence.
[48]
Mkoko testified that the first reaction of the four women in the
patio i.e. herself, Mkwambi,
Jozana and Dikana was to run towards the
side gate on the perimeter fence. This evidence was
contradicted by Mkwambi who
said the first reaction of the five
including Zameka was to run towards the kitchen door and they did not
go to the side gate.
[49]
Jozana whilst under cross-examination stated that she could see
accused 13 and 16 attacking her
at the kitchen door. Under
cross-examination she conceded that the petrol had an effect on her
eyes. When it became
clear that the consequence of the effect
was that she could not see the accused she immediately changed and
said the petrol had
no effect on her eyes. I found her to be an
unreliable witness on this aspect and the other aspects stated above.
[50]
The evidence of the State witnesses was also riddled with
contradictions with regard to whom
of the accused committed a
particular act. Jozana in her evidence in chief alleged that
accused 12 had tripped her as she
was escaping the house but under
cross-examination changed to say it was accused 13 who tripped her.
Madyumdyum testified
that accused 12 jumped over the small gate to
gain entry into the Matiwane residence at the initial stages of the
attack.
This was contradicted by Emihle Mabuya amongst other
who gave evidence that accused 12 and 13 were at the main gate
carrying 2L
containers. They jumped over the main gate into the
yard of the Matiwane residence.
[51]
Mkoko stated in her evidence that accused 12 was in possession of a
spade whereas Aviwe, Luthando
Matiwane and Madyumdyum testified that
it was accused 10 who was in possession of the spade. To
further muddy the waters
Mkwambi testified that accused 13 was in
possession of the spade. Whilst I accept that the spade is an
item that is easily
transmitted amongst people, it appears to me that
each of these witnesses wanted to create the impression that the
person alleged
to be in possession of a spade had been in possession
throughout the attack.
[52]
Most of the State witnesses when they were confronted with
discrepancies between their evidence
in Court and their respective
police statement stated that their evidence in Court had been relayed
to the investigating officer,
Warrant Officer Nqwelo.
Surprisingly Nqwelo was not called to clarify these aspects at all.
This has the result that
the credibility of most State witnesses was
undermined.
[53]
An analysis of the evidence given by the State witnesses gives the
strong indication that their
evidence may have been discussed before
the trial and there had been a deliberate attempt to mislead the
Court. It appeared
to me that the witnesses on a specific
incident they testified about were regurgitating from a prepared
script oblivious to their
statements to the police.
[54]
In these circumstances I am satisfied that on a conspectus of all the
evidence led the State
has failed to establish a
prima facie
case.
[55]
I had considered to disallow Mr Mhlaba his fees or a portion thereof
as a mark of the Court’s
displeasure at his grossly
unsatisfactorily handling of the defence as was done in
Khoza &
Others v S
[2010] ZASCA 60
,
2010 (2) SACR 207
(SCA) at paras
92-94. I came to the conclusion that Counsel must first be
warned to desist and only if such conduct persists
must action be
taken.
[56]
My sympathy is with the Matiwane family for having lost a child and
property in these tragic
circumstances. Our Courts are guided
by the law no matter how sad the circumstances. In this case,
the State has fallen
short of the required standards.
[57]
After anxious consideration I have a suspicion that some of the
accused may well have been involved
in the commission of these
crimes. However, a suspicion is not enough to even put the
accused to their defence. Our
law requires that the accused be
set free.
[58]
I can only earnestly appeal to all the role players to resolve
whatever differences they have
peacefully. We are now a
Constitutional democracy and must act in accordance with the law.
There can be no justification
for resorting to violence however grave
the complaint.
[59]
In the circumstances and for the above reasons, all the accused are
found not guilty and discharged.
_______________
T
MALUSI
Judge
of the High Court
Appearances
:
For
the State:
Adv Zantsi
instructed by
Director
of Public Prosecutions
GRAHAMSTOWN
For
Accused
(1,
3, 6; 8; 13, 14,15 & 16): Ms
Dyantyi
instructed by
Legal
Aid Board
EAST
LONDON
For
Accused:
2,
5, 7, 9, 10, 11 & 12
Mr Mhlaba
instructed by
Legal
Aid Board
EAST
LONDON
Delivered
on:
9 September 2019
[1]
S
v Hadebe
1997
(2) SACR 641 (SCA).
[2]
S
v Lubaxa
2001
(2) SACR 702
(SCA);
[2002] (2) ALL SA 107
(A) at para 18.
[3]
Lubaxa
ibid
at
para 19-21.
[4]
S
v Mthethwa
1972
(3) SA 766
(A) at 768A-C.
[5]
S
v Mehlape
1963
(2) SA 29
(A) at 32A-F.
[6]
R
v Mashole
1944
(AD) 571; S v Zwavi; Sv Mhlongo 1991 (2) SACR; S v Thandwa
2008 (1)
SACR 613
(SCA) at para 13.
[7]
R
v Hlongwane
1959
(3) SA 337
(AD) at 340H-341B.
[8]
Musiker
endorsed S v Liebenberg
2005
(2) SACR 333
(SCA) at para 14 and 15;
S
v Musiker
(272/12)
[2012] ZASCA 198
;
2013 (1) SACR 517
(SCA) (30 November 2012).
[9]
Thebus
& Another v The State
2003
(6) SA 505 (CC); 2003 (10) BCLR 1100 (CC).
[10]
S
v Ndweni & Others
1999
(2) SACR 225
(SCA) at 227E;
S
v De Jager
1965 (2) SA 612
(A) at 613 A-B.