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[2018] ZAKZPHC 9
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Khumalo v S (AR717/97) [2018] ZAKZPHC 9 (16 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR 717/97
In
the matter between:
SELBY
NDEKU
KHUMALO
Appellant
and
THE
STATE
Respondent
Coram: Koen J (Sishi et
Masipa JJ concurring)
Heard: 29 January 2018
Delivered: 16 February
2018
ORDER
(a) The appeal against
conviction and sentence is upheld.
(b) The conviction of the
appellant and the sentences imposed on him are set aside, and
substituted with a finding that ‘the
first accused is found not
guilty and discharged.’
J
U D G M E N T
KOEN
J
[1]
On 23 April 1997, the court
a
quo
[1]
convicted the appellant, who was accused no. 1,
[2]
of:
(a) Robbery with
aggravating circumstances (count 1);
(b) The murder of
Buyisiwe Malevu (count 2); and
(c) The attempted murder
of Masibakela Zondi (count 3).
On
30 April 1997, the appellant was sentenced to:
(a) Twenty years’
imprisonment on count 1;
(b) Twenty years’
imprisonment on counts 2 and 3, which were taken together for the
purpose of sentence, of which a period
of ten (10) years was directed
to run concurrently with the sentence on count 1.
On
the same day the appellant was granted leave to appeal by the trial
court to the full court of this division against the convictions
and
sentences.
[2]
On 27 February 1998, the appellant’s appeal was struck off the
roll by the full court due to his non-appearance at the
appeal, it
being recorded that he had escaped from custody and was a fugitive
from justice. The appellant has accordingly in a
substantive
application, now applied that:
(a) This appeal be
enrolled for hearing; and
(b) His failure to
prosecute the appeal timeously be condoned.
[3]
The factual basis upon which such condonation is sought, as appears
from the affidavit of the appellant, is as follows:
(a) After his conviction
he was detained in the New Prison Pietermaritzburg;
(b) During July 1997 he
fell ill and was admitted to the Edendale Hospital in
Pietermaritzburg where he was kept under guard and
chained to a
hospital bed;
(c) On 12 July 1997 he
was released from custody by the prison officials who unchained him
and informed him that his appeal had
been successful. They left him
in hospital unguarded;
(d) With the assistance
of hospital staff, he contacted his wife who then fetched him from
Edendale hospital. He returned
to his home in Newcastle where
he lived and remained up until 2015. During this time he became a
successful businessman which included
inter alia owning a successful
tavern. At no stage did he hide away. He lived a normal life;
(e) During 2015 an
unlicensed firearm was discovered in his tavern, resulting in his
arrest. When his fingerprints were taken, he
was informed that he was
sought on a charge of escaping from custody, it being alleged that in
1997 he had escaped from Edendale
Hospital. He was charged in ‘F’
Court Pietermaritzburg under case number: 9987/15; Plessislaer CAS
260/7/1997. That
case was subsequently withdrawn in court for reasons
undisclosed;
(f) As he was leaving ‘F’
Court, he was apprehended and taken away to prison having been told
that he now had to start
serving the thirty (30) year sentence;
(g) He accepts that he
was probably released erroneously;
(h) He has requested the
senior public prosecutor to make available, copies of the docket
relating to the escaping charge, but according
to an email received
from Lieutenant Colonel S Chetty of Plessislaer police station such
docket cannot be found;
(i) He denies that he was
advised of the date of his appeal and hence that he was given the
opportunity to be present when his appeal
was initially set down.
[4]
The application for condonation was not opposed by the State.
Whatever cynical view one may hold as to the correctness of the
allegations advanced, there is nothing in rebuttal and the State has
accepted that the appeal should be heard. I am disposed to
granting
such condonation, particularly in view of the conclusion to which I
have come, regarding the merits of the appeal.
[5]
Turning then to the merits of the appeal, the record is an extensive
one, exceeding one thousand pages. In brief terms, the
evidence
incriminating the appellant upon which the State relied, included
that of:
[3]
(a) Mr Kingrose
Ramthekeng Ramuthloa, an accomplice in the robbery;
(b) Mrs Rachael Letuma,
the wife of a co-perpetrator, Doctor Sithole, who was shot and killed
on the day of the robbery;
(c) Messrs Mandla Ntuli
and Bonginqaba Zondi, who at an identification parade allegedly
identified the appellant as the driver of
the getaway vehicle used in
the robbery, a blue Laurel with an NKR registration number.
[6]
The appellant raised an alibi that on the day in question, namely 25
May 1990, he was at home. In support thereof, he referred
to a
criminal case which was opened against him in respect of an alleged
assault by him on one Ms Nonqele Maqume, which according
to the
police Occurrence Book and Criminal Register
[4]
is recorded to have occurred at about 10h45 at the appellant’s
home, namely house number 3613, Section 3, Madadeni District,
Newcastle (it being common cause that the robbery resulting in the
murder and attempted murder convictions having occurred around
midday
on that day).
[7]
The trial court did not rely on the alleged identification at the
identity parade, accepted the evidence of Mr Ramuthloa and
Mrs
Letuma, and rejected the alibi of the appellant.
[8]
The trial court’s findings in regard to Mr Zondi and Mr Ntuli
are somewhat ambivalent. It found that:
‘
The witness,
Bonginqaba Zondi, who with Mandla Ntuli attended an identification
parade where accused no. 1 was pointed out on the
23
rd
August
1990, we found to be not entirely reliable as a witness. He was
plainly embarrassed in relation to his statement to the police
to the
effect that he recognised accused no. 1 because of his light
complexion when, in giving evidence, he had indicated to us
that it
was the beard worn by accused no. 1 which had been the fundamental
aspect by which he recognised him at the identification
parade.
However, I may say that we have had regard to the manner in his
evidence as to what occurred in the course of the robbery
fits in
with the evidence of Mandla Ntuli and the other witnesses who
testified to that aspect of the matter. Apart from his evidence
about
the identification of accused no. 2, we were inclined to regard him
as a fairly good witness.’
No
specific observation was made regarding the evidence of Mr Ntuli. The
trial court however remarked that:
‘
Although we were
not satisfied with the evidence which accused no. 1 gave about
whether or not he had a beard on the occasion of
the 25
th
May 1990 and whether or not that feature could have been used by the
witness, Zondi, to identify him, we feel that it is unsafe,
to have
regard to the evidence of the identification parade, for the purposes
of assessing the state case against accused no. 1.
Nevertheless, and even
without that identification, we consider that the evidence which
accused no. 1 tendered in support of his
alleged alibi, is
unsatisfactory and unconvincing and that, as a matter of fact, the
evidence given by Kingrose Ramuthloa and other
witnesses as to his
involvement in the event which formed the subject matter of the
charges is the truth.’
[9]
It is trite law that:
(a) The State has the
onus of proving the guilt of an accused person beyond a reasonable
doubt;
(b) An accused raising an
alibi has no onus to discharge, it being for the State to negative
such alibi;
(c) That if the version
of an accused person is reasonably possibly true, he is entitled to
the benefit of any doubt;
(d) If on a conspectus of
all the evidence, the State case is so overwhelming that it cannot be
said that the version of the accused
could be reasonably possibly
true, that a conviction could then follow.
[10]
The trial court found that the appellant had given his evidence
‘confidently and fluently and that there were not any
signs of
discomfort in the course of dealing with cross-examination.’ It
found however that unlike accused no. 2, the appellant
attempted to
disassociate himself entirely from any of the
dramatis
personae
implicated by Mr Ramuthloa. It remarked further that there were
several unsatisfactory features in the appellant’s evidence
inter alia relating to the frequency with which he visited the home
of Mrs Letuma and her deceased husband Doctor Sithole, that
it had
not been put to any of the state witnesses that the appellant had
been incapacitated by having plaster of Paris on his leg
on 25 May
1990 (this only being referred to when he gave evidence), that he
adjusted his answers and the degree of his incapacity
to meet the
exigencies of the questions being directed to him at the time, and
that notwithstanding his alibi,
[5]
‘
He
made no mention of this during the period when he was incarcerated
before being given bail [and] …we nevertheless consider
it
curious, and at the lowest level, improbable that he would not have
directed the police to their own records to establish that
he could
not have taken part in the robbery, which had been committed a mere
month or so before he was arrested.’
[11]
As much as the criticism of a failure to disclose an alibi might be
valid if true, the learned Judge committed a misdirection
in ignoring
a crucial piece of the evidence, which was to the effect that the
appellant had in fact informed the court of his alibi
at the original
bail application after the charges were initially proffered in
1990.
[6]
On that occasion
according to his uncontroverted evidence the senior prosecutor, Mr De
Klerk, had in fact told the appellant to
go and make copies of the
‘information’ which was held by the police. It was as a
result of that injunction that the
police at his request had then
made photocopies, in preparation for the trial which was to have
taken place in 1992, of respectively
the Occurrence Book entry and
the entry in the Criminal Register, which were retained by him and
became exhibits ‘O1’
and ‘O2’.
[12]
In evaluating the alibi of the appellant, it is so that neither
exhibit ‘O1’ or ‘O2’ identified the
appellant
as the alleged assailant. However, the evidence of the
appellant and his wife, Dawn Khumalo and a further defence
witness,
Mr Simanga Mdakane, who were present at his home on 25 May 1990,
confirmed the assault on Ms Nonqele Maqume and her stated
intention
to report the appellant to the police. It was correctly accepted by
the State that the entries in the Occurrence Book
and Criminal
Register could not be backdated and were probably made at or about
the times indicated, as part of the completion
of the registers
maintained by the police. The chronological sequence in which the
entries are made is also confirmed by the Criminal
Register numbers
in subsequent entries unrelated to this matter following
consequentially after number 224/05/1990. The entries
are plainly
genuine and objective evidence of an assault at the appellant’s
home at around 10h45 on or about 25 May 1990
having been reported to
the police on Saturday, 26 May 1990. That this might have been an
assault by somebody else on Ms Maqume,
which has now fortuitously
been seized upon by the appellant to fabricate an alibi, as suggested
by the State, can safely be discounted
as improbable. The reporting
of the incident and the recorded details relating thereto corroborate
the evidence of the appellant,
his wife and Mr Mdakane regarding his
alibi in material respects.
[13]
It is so that the appellant did not refer to the extent of his
alleged incapacity due to his leg being in plaster of Paris
until he
gave evidence. He might not have been able to deliver the meat and
beer to Mr Mdakane and others who had called at his
home on the
morning of 25 May 1990, after the feast of the previous day, and he
might not have been able to carry out the assault,
if indeed
completely incapacitated to the extent that he was totally immobile.
The impression I however gained from reading his
evidence was that
any immobility due to his leg allegedly having been in plaster was
probably overstated and an afterthought, and
to that extent
untruthful and constituting an attempt to gild the lily and distance
himself even further from the crimes. That
would probably explain his
evidence in this respect being raised almost as an afterthought.
[14]
Alive to those criticisms, including that his contentions were not
raised specifically in his plea explanation, but only generally,
[7]
having regard to the onus being on the State to negative such alibi
once raised, one cannot but agree with the view expressed by
Colonel
van Tonder that the docket relating to CR224/05/1990 which would
contain the first information of the crime against the
appellant,
should have been obtained. That was never done, presumably also
because the docket was by the time of the trial no longer
available.
The appellant in his evidence further confirmed that both the
complainant to his alleged assault, Ms Maqume, as well
as the lady
who had reported her conduct to him resulting in the assault, were
still available. They were not called. No adverse
inference should
however in my view be drawn from that, as the appellant, his wife and
an independent witness, Mr Mdakane had all
testified as to the
assault. The appellant is entitled to consider that evidence as
sufficient. The issue is accordingly not one
of an adverse inference
being drawn, but one of the sufficiency of evidence and the probative
value of their evidence.
[15]
On the evidence relating to the alibi, it cannot be said that the
version of the appellant was not reasonably possibly true.
That
evidence, however, must not be seen in isolation, but in the totality
of all the evidence relating to the case. It might be
argued that
even if that evidence relating to an assault on Ms Maqume at the
appellant’s home at approximately 10h45 is accepted
that it
would not necessarily exclude the appellant’s presence at a
robbery which occurred around noon. The difficulty with
that
argument, however, firstly is that it was never explored as to
whether there would be sufficient time for the appellant to
move from
his home at Madadeni to where the crimes were committed at the
pension pay out point at Nqutu. Distances and travel time
were
canvassed with Constable Ndebele, the first State witness, but the
evidence remained fairly inconclusive and of a general
nature.
Secondly and more importantly, however, is that this was not the
State case which the appellant had to meet. Mr Ramuthloa’s
evidence had been that he, Jerry, and the appellant in a Laurel motor
vehicle, and the appellant’s sister, left early in
the morning,
at about 3am. They proceeded to a point where the appellant’s
sister was allegedly requested to park her vehicle
and keep the
bonnet of the car open. The rest of them then went to the area where
the robbery was to take place and in Mr Ramuthloa’s
words:
‘…waited there
for some time
for the car carrying
the pay to arrive’ (my emphasis). This version is in total
conflict with any notion of the appellant
being at his home and then
leaving some time after 10h45 to participate in a robbery.
[16]
The only other evidence is that of Mr Mandla Ntuli and Mr Bonginqaba
Zondi. The trial court did not rely on the evidence relating
to the
identification parade. The reasons for that conclusion are not clear
from the judgment. The propriety of the identification
parade will
always suffer from the fact that the officer in charge of the
identification parade could not testify as he had passed
away. Mr
Ntuli and Mr Zondi, on their own evidence, had not been cautioned
that the suspects involved in the robbery might not
be included in
the parade, but were simply told that they had to see whether they
could identify those who were involved in the
robbery from those
present in the parade. That is an undesirable approach to adopt.
Nevertheless Mr Ntuli allegedly identified
the appellant, but without
reference to any objectively identifiable features. Mr Zondi sought
to justify his identification of
the appellant with reference to the
complexion of the appellant, which it turned out was not a
particularly distinguishing feature,
resulting in him thereafter
relying on the appellant having had a beard. The further questioning
which this elicited ended largely
inconclusively depending on how one
defines a ‘beard’. I was left with the impression that
the appellant in fact had
some hair growth on his face at the time
which could have been categorised as a beard. No such particular
distinguishing features
were listed by Mr Ntuli, but as the learned
trial judge correctly pointed out, identification is not always
necessarily dependant
on specific, unique and distinguishing
features.
[17]
There was nothing to suggest that Mr Ntuli and Mr Zondi were not
honest. Their opportunity for observation was also adequate,
the blue
Laurel vehicle having driven past their parked vehicle allowing them
to look at the driver, albeit mainly from a side
view perspective.
The only danger relating to their evidence resides in whether it was
not possible, as a result of a suggestion
by the police or others,
that they might not have become convinced that the driver they
observed was in fact the appellant when
it was not.
[18]
In the ordinary course, one would not speculate on such an issue in
the absence of a clear factual foundation for doing so.
There are
however disquieting features about this case relating to the
modus
operandi
which had been adopted by the police. These include the
following: the matter was investigated by the notorious KwaZulu-Natal
police,
who, in the early nineties, had the benefit of also invoking
draconian emergency regulations which allowed the detention of
persons
for up to ninety (90) days without judicial oversight;
further during the pre-trial stage statements were taken from
witnesses,
who subsequently at the trial spontaneously exclaimed that
these statements had been prepared for them by the police, and that
they had to sign them on pain of being detained for up to ninety (90)
days if they did not do so. The denial of invoking any such
a threat
by, amongst others Colonel van Tonder, was disputed by inter alia Mrs
Dawn Khumalo. A subsequent statement obtained from
Mr Ramuthloa and
his evidence before the trial court differed in a number of respects
from an earlier confession he had allegedly
made. A subsequent
statement contradicting earlier statements were made by a number of
witnesses. The originals of these statements
were also not available
but unsigned typed up versions were often presented. There were also
disquieting features such as Sergeant
Swanepoel, the investigating
officer, who cautioned Mrs Rachael Letuma after she had testified in
chief but immediately before
she was to be cross-examined, to adhere
to what was contained in her statement.
[19]
Not surprisingly witnesses, like Dawn Khumalo, but also others,
stated that the contents of their statements which had been
prepared
for them by the police, and with which they were confronted for
signature, were false.
[20]
Mrs Rachael Letuma, like some of the other witnesses had made new
statements to the police after the charges were reinstated.
Not
surprisingly these second statements added crucial information
implicating the appellant. Bob Cebekhulu, Dawn Khumalo,
and
Bafana Hadebe all gave evidence that Colonel Van Tonder had cajoled
and threatened them, supplied information to them, and
that certain
portions of their statements were false. The reason for Mr Ramuthloa
making a second statement namely that he claimed
that he had
minimised his own complicity in the initial statement was false, as
the contents of the second statement did not increase
the role he had
played in any material respects. It is also a disquieting feature
that the police apparently negotiated with him
over an extended
period to persuade him to become a State
witness.
At that stage he had already been convicted in respect of another
robbery and was incarcerated. He therefore potentially
faced a
further long period of imprisonment which he no doubt would want to
avoid, and ingratiating himself with the police was
one way to
achieve that. It has been recognised that a cautionary approach is
already required in respect of accomplice witnesses,
but that special
caution must be applied where a court has to deal with accomplices
who have done a complete about turn and changed
their statements, as
these witnesses are self-confessed liars. Such evidence must be
scrutinised with extreme caution.
[8]
[21]
Mrs Rachael Letuma also did not corroborate Mr Ramuthloa as the
learned trial judge found. Indeed there were serious
contradictions between their versions, Mr Ramuthloa having said that
he had not told her about the robbery, but had lied and stated
that
her husband had gone to Nelspruit to get his driving licences. Her
evidence was that the appellant had told her the same story
Mr
Ramuthloa had told her when she enquired from him, but when asked
about what had been told to her, it was not that the appellant
had
gone to Nelspruit, but that there had been ‘some shooting and
they scattered, that he believed he had been arrested’.
The
learned judge had therefore erred in finding corroboration for Mr
Ramuthloa’s version in the evidence of Mrs Rachel Letuma.
[9]
Furthermore, Mrs Rachel Letuma had received her deceased husband’s
proceeds of the robbery from Mr Ramuthloa
[10]
which potentially made her an accomplice. Although this was raised by
the trial court during her testimony, nothing further came
of it, nor
did the trial court when assessing her evidence recognise that she
was an accomplice whose evidence would have to be
treated with
caution and would require corroboration.
[22]
Leaving aside the alleged identification of the appellant by Mr Ntuli
and Mr Zondi which the trial court did not seemingly
seek to rely
upon, the remainder of their evidence relating to the presence of the
blue Laurel, is only confirmation of peripheral
issues and would not
be an adequate safeguard to Mr Ramuthloa after his negotiations
with the police over an extended period
and it becoming apparent that
he could escape additional imprisonment, possibly substituting the
appellant for the true culprit.
Mr Ramuthloa is after all a
self-confessed liar and not a stranger to the criminal world from
previous experience.
[23]
As regards credibility, the trial court favoured the demeanour of Mr
Ramouthloa, although it remarked that the appellant gave
his evidence
confidently.
[11]
Demeanour is
however a fallible guide to credibility.
[12]
As much as the trial court had the benefit of observing the witnesses
when they testified, in the light of the trial court’s
remark
that the appellant gave his evidence confidently, it would be
dangerous to reject his evidence completely and/or base the
conviction of the appellant solely or mainly on the demeanour of Mr
Ramouthloa.
[24]
On a conspectus of all the evidence, the State’s evidence was
not so overwhelmingly cogent that it negated the evidence
relating to
the alibi of the appellant altogether, or at least, that it cannot be
said that reasonable doubt exists as to whether
evidence relating to
the alibi of the appellant, could not be reasonably possibly true.
[25]
The appeal of the erstwhile accused no. 2 was unsuccessful, that
being reported as
S
v Khumalo
.
[13]
The erstwhile accused no. 2 was implicated mainly by Mr Ramuthloa,
without any additional evidence from Messrs Ntuli and Zondi.
The trial and also the appeal of accused no. 2 however proceeded in
the early days of our new Constitutional dispensation, when
the
jurisprudence relating to what constitutes a fair trial was still in
its infancy. The requirement of a fair trial now plainly
also extends
to the pre-trial procedures when statements are taken by the police
from State witnesses. The circumstances relating
to these must be
scrutinized very carefully, particularly where conflicting statements
were obtained and/or there are repeated
claims from more than one
witness, as in casu, that they were presented with statements,
pre-prepared by the police which they
were simply required to sign,
and which were signed because of threats of imprisonment in terms of
the 90 day detention laws then
current, but which would not have
survived in our present Constitutional dispensation. I have
misgivings as to the reliability
of the evidence given by the many
State witnesses, and this gives rise to a reasonable doubt which the
appellant must be given
the benefit of. To that extent, I therefore
with the greatest respect, disagree with the conclusion reached in
the appeal of the
erstwhile accused no. 2, insofar as it may be
contended, with reliance on that judgment, that a similar conclusion
should follow
in respect of the appellant. Plainly further, the
respective legal position of the appellant and the erstwhile accused
no. 2 are
dissimilar inter alia having regard to the evidence
relating to the alibi of the appellant, which did not feature in
respect of
the erstwhile accused no. 2.
[26]
The appeal against conviction and sentence is accordingly upheld. The
conviction of the appellant and the sentences imposed
on him are set
aside, and substituted with a finding that the first accused is found
not guilty and discharged.
___________________________________
Koen
J
I
agree
___________________________________
Sishi
J
I
agree
___________________________________
Masipa
J
Appearances
For
the Applicant: Mr. S MATTHEWS
Instructed
by: MASON INCORPORATED
Ref.:
Mr C Johnson/nn/09K041/001)
Tel.:
033 – 345 4230/345 3525
For
the Respondent: Mr J DU TOIT
Instructed
by: DIRECTOR OF PUBLIC PROSECUTIONS PIETERMARITZBURG
Ref.:
Mr J du Toit
[1]
Hurt J sitting with two assessors.
[2]
There were three accused. Accused no 2 was also convicted on all
three counts and received the same sentence as the appellant.
His
subsequent appeal against conviction and sentence is reported
sub
nom
as
S
v Khumalo and another
[1998] 2 All SA 294
(N) and was refused by Thirion J, with McLaren
and Magid JJ concurring. Accused no 3 was acquitted by the trial
court.
[3]
I do not intend summarizing the evidence of the witnesses in any
great detail. The material evidence of Mr Ramuthloa and various
other witnesses relevant to this appeal is accurately and succinctly
summarized in the judgment of Thirion J in
S
v Khumalo
(supra) fn2. I cannot improve thereon.
[4]
Copies of the relevant pages of these official police records were
handed in as exhibits. The authenticity thereof is not in
dispute.
[5]
That a charge of assault alleged to have occurred at about 10h45 at
the appellant’s house number 3613, Section 3, Madadeni
District, Newcastle was opened with the police by Ms Nonqele Maqume
is confirmed beyond doubt by extracts from the Occurrence
Book and
Criminal Register relating to CR number 224/05/1990 of 26 March
1990, being exhibits ‘O1” and ‘O2’.
The
original registers have subsequently been mislaid.
[6]
That was before the initial charges were withdrawn in 1992 but
subsequently instituted afresh when the appellant was recharged
in
1995.
[7]
His statement in terms of
section 115
of the
Criminal Procedure Act
51 of 1977
simply recorded that ‘On 25
th
May 1990, I was at home in Madadeni during the course of the
morning.’
[8]
S
v McBride
[2013]
ZAGPPHC 109 para 7
.
[9]
The full court in
S
v Khumalo
(supra)
at 306a also concluded that the trial court had misdirected itself
in concluding that certain evidence given by Mr Ramuthloa
was
corroborated by early statements made to the police by Bob Cebekhulu
and Dawn Khumalo.
[10]
Not the appellant.
[11]
There were certain unsatisfactory features in the evidence of the
appellant, for example relating to the extent of his incapacity
arising from his leg being in plaster of Paris, but even if he was
dishonest in those respects, his mendacity in those regards
do not
detract from the evidence relating to his alibi as confirmed
peripherally by the police Occurrence Book and Criminal Register
entries.
[12]
R
v Masemang
1950 (2) SA 488 (A).
[13]
See
footnote 2 above.