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[2018] ZAKZPHC 73
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Zakwe and Others v S (AR 336/17) [2018] ZAKZPHC 73 (19 December 2018)
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case No: AR 336/17
In
the matter between:
ZAMAKWAkHE ZAKWE
1
st
APPELLANT
GADUMANE
GANI ZAKWE
2
ND
APPELLANT
KHULENZOKUHLE
ZAKWE
3
RD
APPELLANT
BUNYASO
SOMANHLE ZAKWE
4
TH
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
Delivered on: 19/12/2018
MNGADI, J
[1]
The four appellants, with leave granted on petition, appeal against
conviction.
They were charged before the regional magistrate with one
(1) count of murder. The appellants, who were legally represented,
pleaded
not guilty to the charge and the regional magistrate, having
heard evidence, convicted the appellants as charged and sentenced
each appellant to twelve (12) years imprisonment.
[2]
In the trial the State led evidence of five (5) witnesses and each of
the
appellants testified. The charge against the appellants was that,
upon or about 26 December 2011 and at or near KwaNomalala area
in
Tugela Ferry, they unlawfully and intentionally killed Siwakile
Mzibomvu (the deceased), a 22 year old male person.
[3]
The evidence, borrowing largely from the summary of the evidence by
the trial
court, was as follows. Zulisile Ndlovu (Zulisile) testified
that, the appellants were brothers and they were part of the family
of her in-laws and the deceased was her son. On 25 December 2011 late
in the evening the first appellant and his parents came to
her home
looking for the deceased, she had last seen the deceased at home
earlier in the day. They reported to her that the deceased
earlier on
that day had visited their home and they offered him a place to sleep
in one of the houses. They later found that he
had left without
reporting that he was leaving, at the same time, it was discovered
that an amount of R20 000 had been stolen.
[4]
Zulisile testified that on the following day, she met the appellants
and
their father at Tugela Ferry as arranged in order to look for the
deceased. The deceased had not slept at home. She and the appellants
and their parents continued searching for the deceased. She received
a call that the deceased was seen in Greytown. They proceeded
to
Greytown in two vehicles. She was in a double cab bakkie with the
second and third appellants and their mother. She assumed
that in the
other sedan vehicle there was the first and fourth appellants and
their father because she saw them in Greytown. She
observed that
there were sticks, sjamboks and knob sticks in the double cab
vehicle,
[5]
She testified that at Greytown they saw the deceased coming out of
the bottle
store and he was with Magwaza and Xulu. The vehicles were
stopped and the appellants jumped out and grabbed the deceased. They
searched him and found R2 000 cash on him. They put him in the boot
of the sedan vehicle. Xulu produced R10 000 in cash and he said
it
was given to him by the deceased and he gave it to the appellant's
father. Magwaza told the appellants that R6 000 was given
to him by
the deceased and the money was at his home in Tugela Ferry. They then
all drove back to Tugela Ferry with the deceased
in the boot of the
sedan vehicle which was driven by the first appellant.
[6]
She testified that at his house Magwaza took out the R6 000 and he
gave it
to the appellant's father. The first appellant and his father
told her that they will take the deceased away to hit him. She
pleaded
with them not to take the deceased away. They told her that
they will not hit him in front of her as she will not feel good to
witness the beating. She suggested that the deceased be handed over
to the police, but the first appellant told her that they don't
work
with the police. The appellants than drove away with the deceased
still in the boot, after dropping her near her home.
[7]
Zulisile testified that the following morning she was visited by
people sent
to her by the appellants and she was taken to Tugela
Ferry police station. She received a report to the effect that the
deceased
had died whilst he was being beaten up. She met the
appellants at the police station but she did not speak to them. The
evidence
of Zulisile was confirmed by that of Xulu and Magwaza in all
respects where Xulu and Magwaza were present.
[8]
Dr Naidoo testified that he conducted the
post mortem
examination
on the deceased's body on 29 December 2011. He observed extensive
whiplash, abrasions and bruises all over the body
on the lower and
upper limbs, the chest and posteriorially and laterally and over the
neck. There were bilateral thoracic effusions
which were straw
coloured, which means that in the thoracic cavity there was fluid
around the lung which was straw coloured , which
was not blood. Both
lungs at
post mortem
were collapsed. He found fat embolism as
a result of damage to fatty issue releasing fluid which finds its way
to the lungs and
block the vessels causing the lung to collapse. He
found the cause of death to be: (1) extensive whiplash bruises and
abrasions
and the fat embolisms. He concluded that the deceased died
as a result of prolonged assault with a stick, rod, or sjambok. The
pain was sufficient to cause death by shock.
[9]
Constable Mbatha testified that on 27 December 2011 at 1Oam he
attended a
scene at Nomalala ward, The body of the deceased lying in
the dry river bed was shown to him. On his return to the police
station,
he found the appellants who told her that the deceased had
stolen their money and that having found him, they disciplined him
but
he managed to escape.
[10]
The appellants in their evidence testified as follows: On 25 December
2011 at night, having discovered
the theft of the money from their
home, they together with their parents set out in third appellant's
vehicle, a double cab bakkie
to look for the deceased, They looked
for him in their mother's relatives' homes, at taverns and at his
(deceased's) home at Tugela
Ferry but in vain, On the following
morning they resumed the search, using two vehicles, a double cab
bakkie and a sedan, In the
bakkie it was the second appellant driving
with the third appellant and their mother. In the sedan which driven
by the first appellant
was their father, the fourth appellant and a
small boy,
[11]
They stated that at Tugela Ferry they met with the deceased's mother.
A report was received
that the deceased was at Greytown_ They, in
both vehicles, proceeded to Greytown, They found the deceased being
held by a group
of men. They searched him and they found R2 000. Xulu
gave them R10 000 and Magwaza said there was R6 000 with him at his
home
at Tugela Ferry. The aforesaid group of men placed the deceased
in the boot of the sedan. They drove to Magwaza's home and they
recovered R6 000, The deceased told them that R2 000 was with a
certain boy at KwaNomalala and he offered to take them to that
boy.
[12]
After
a short drive from Magwazas' house, they dropped off the deceased's
mother. The first appellant took the deceased out of the
boot and put
him in the rear seat of the double cab bakkie. The fourth appellant
got into the double cab bakkie. The deceased was
placed between the
third and fourth appellants in the back seat to ensure that he did
not escape, The second appellant was the
driver of the bakkie and the
first appellant a front seat passenger. Their parents drove home in
the sedan vehicle.
[13]
They
stated that at first after crossing the bridge at KwaNomalala, the
deceased indicated that he was unable to point out the homestead
where he left the R2 000 with a certain boy. He asked that the car be
stopped so that he could look around. The vehicle was stopped
and the
deceased got off. He looked around and he suddenly ran away. The
third appellant gave chase but he was called back by the
others. It
was at about 15H30 and there were homesteads in the area. The
deceased, as far as they know, had relatives in the area.
They then
drove home.
[14]
They
testified that on the following morning they received a report over
the telephone from their father that the naked body of
an unknown boy
had been found in a local river and he asked them what happened. They
then decided to drive to the deceased's mother
in order to find out
whether the deceased came back home. They found that the family of
the deceased had already received the news
that it is the body of the
deceased that had been found at KwaNomalala. They took the deceased's
mother to the police station in
order for her to identify the body.
[15]
The
appellants denied that they assaulted the deceased or that they were
in any manner involved in his death. They denied that there
were
sticks and knob sticks or sjamboks in their vehicles. The first
appellant denied that he and his father told the deceased's
mother
that they were going to beat up the deceased. They were not angry
with the deceased and they had recovered the bulk of the
money. It
was the deceased's mother who suggested that the deceased be placed
in the boot of the vehicle so that he would not run
away. She was
also against the taking of the deceased to the police station because
the deceased had other cases.
[16]
The
regional magistrate found that the issues in dispute are whether the
evidence proved beyond reasonable doubt that any of the
appellants is
liable for the beating of the deceased, and if so, whether such
beating was unlawful and intentional.
[17]
The
regional magistrate noted that Zulisiwe was a middle aged rural woman
with very little education. She is an unsophisticated
person. The
court found her to be an impressive witness. It found her evidence to
accord with the probabilities. The trial court
accepted her evidence
that it was never her suggestion that the deceased be placed in the
boot of the sedan vehicle. It also rejected
that it was a group of
unknown men who held and placed the deceased in the boot of the
vehicle, but held that it was the appellants
that had an interest in
the deceased and it is the appellants who were in charge of the sedan
vehicle. They took control of the
deceased and they deprived him of
his liberty. Further, Zulisiwe's evidence was corroborated by the
evidence of Xulu and Magwaza.
The court found the appellants to be
mendacious witnesses and that part of their evidence did not make
sense.
[18] It has been argued before us
on behalf of the appellants that the trial court erred in
accepting
Zulisile's evidence. It was uncorroborated evidence and contradicted
by other evidence.in particular, it is argued, Magwaza
did not
testify that he saw sticks in the bakkie when he was travelling in it
from Greytown to Tugela Ferry and he did not testify
that at Tugela
Ferry the first appellant and his father said they were taking the
deceased away to beat him up. Further, it is
argued, at Greytown Xulu
testified that he is the one who said the deceased must be taken to
the police. In my view, it must be
noted that Magwaza was not asked
anything about sticks in the vehicle nor was he asked whether the
first appellant and/or his father
said anything about taking the
deceased away to be beaten up. Xulu did not say that he is the only
one who suggested that the deceased
be taken to the police. It is not
proper to decide the credibility of a witness in a piecemeal fashion.
The decision relating to
credibility must be based on the evidence of
that witness as a whole and in the context of the entire evidence and
the probabilities.
In
Small v Smith
1954 (3) SA 434(SWA)
at
434E-G it was held that it is grossly unfair and improper to let a
witness's evidence go unchallenged in cross examination
and
afterwards argue that he must be disbelieved. In my view, it is
incumbent to point out the part of the evidence that shall
be
contradicted and the evidence that will contradict it. Assertions in
cross-examination by the legal representative of the accused
are to
be accepted as unequivocal admissions by the accused of matters so
asserted from the stage of the proceedings they are made
and
constitute material for consideration by the court unless and until
they are withdrawn. See
S v Magubane
1975 (3) SA 288
(N) at
291H).
[19]
I
agree with the regional magistrate that the claim by the appellants
that they were never angry with the deceased for what he had
done are
false and falls to be rejected. Likewise, the regional magistrate, in
my view, correctly accepted Zulisile's evidence,
that after the
recovery of R6 000 at Magwaza's place, the first appellant and his
father declared openly to her that they were
taking the deceased away
to hit him. The fact that all along the appellants had looked for the
deceased with a view to recover
their money without reporting the
case to the police, supports the evidence of Zulisile that the
appellants refused to take the
deceased to the police. The evidence
of the appellants that although they were the persons who were
anxious to recover the money
and they had put a lot of effort in
tracing the deceased, when the deceased was found they stood by and
other unknown persons searched
the deceased and placed him in the
boot of their vehicle, not on their instructions, falls to be
rejected and that of Zulisile,
Magwaza and Xulu be preferred. Magwaza
and Zulisile both testified that at Magwaza's place the appellants
drove away with the deceased
whilst he was in the boot of the
vehicle. There is no evidence that prior to that the deceased had
said anything about the whereabouts
of the balance of the money. This
is consistent with the first appellant driving away with the deceased
in the boot in order to
beat him up.
[20] The appellants testified
that they (according to the fourth appellant it was the first
appellant) took the deceased out of the boot because they had since
grown to trust him because he was to cooperating. The regional
magistrate, in my view, correctly held that there was nothing which
indicated the deceased was cooperating and he could be trusted
after
the recovery of R6 000 from Magwaza. If it was so decided at
Magwaza's home, why was he not taken out of the boot at that
time?.
Xulu and Magwaza produced the money given to them by the deceased on
their own and the other money was found when the deceased
was
searched. Even after Magwaza had given the appellants R6 000, they
still kept the deceased in the boot of the vehicle and even
when
Zulisile pleaded that they take him to the police or deal with him in
front of her, they refused and insisted on taking the
deceased away.
The appellants testified that even after transferring the deceased
from the boot to the bakkie they kept the deceased
in such a way as
to ensure that he did not escape which confirms that at all times he
was their captive. The trial court, correctly
in my view, rejected
that the deceased was at any stage treated differently because he was
cooperating. The third appellant testified
that the deceased was
taken out of the boot when he had to show them the homestead where he
left the money which was about two
hours walk from Tugela Ferry which
means it was at the area where the body was found at Nomalala. The
deceased was only transferred
from the boot because the sedan vehicle
was to be driven away by the father of the appellants, not near
Magwaza's home. When Xulu
came across them the deceased was still in
the boot because the two vehicles were following each other.
[21]
The regional magistrate, in my view, correctly found it odd
that the following morning when the accused heard from their father
that a body had been found at the local river and being asked what
did they do to the deceased, proceeded to drive to the deceased's
mother, a long distance away, with a view to take her to the police
station to identify the body found, without first ascertaining
whose
body it was. The inference is that they knew what they had done to
the deceased. The appellants, in my view, are not telling
the truth
when they say they did not go to view the body found because they
though they would not be able to identify the body.
The fact is that
they had been with the deceased for most part of the previous day.
Why would they think the body is in state that
they would not be able
to identify it?. Despite the fact that the appellants had ample
opportunity to report to their parents from
15H30 when the deceased
allegedly escaped and it was close to their home and they were
staying with their parents, they did not
do, which indicates that
there was no escape of the deceased. The appellant's mother was
communicating telephonically with the
deceased's mother, if the
appellants reported the alleged escape of the deceased, it would have
been reported to the mother of
the deceased.
[22]
It
is not known what happened to the deceased, what is known is that the
deceased was last in the company of the appellants as their
captive,
shortly thereafter, he was found dead, having been beaten to death.
The appellants are not saying that any persons pursued
the deceased
when he ran away from them. They are not aware of any person who had
any reason to harm the deceased. The deceased
ran away in their area,
he ran away about 500 meters from the spot where his body was found.
Therefore, it is a fact that the deceased
was last in the company of
the appellants. The parents of the appellants having been involved
themselves in the pursuit and capture
of the deceased and the keeping
of the deceased as captive, the father of the appellants declaring
that the deceased will be beaten
up, effectively disassociated
themselves when the deceased was removed from the sedan vehicle and
they drove away in the sedan
vehicle leaving the deceased with the
appellants.
[23] There was no direct evidence
relating to the assault of the deceased. However, it was
proved
beyond reasonable doubt that the deceased was assaulted, and he
sustained injuries from which he died. In the absence of
any
explanation, the assault was unlawful, and it was inflicted
intentionally. The question is whether the from the objective facts
established, the only reasonable inference is that the assault on the
deceased was inflicted by the appellants or not. In
S v Jackson
1998 (1) SACR 470
(SCA) at 476e-f it was held that the burden is
on the State to prove the guilt of an accused beyond reasonable
doubt, no more no
less. n
S v Ntsele
1998 (2) SACR 178
(SCA)
at 182 it was held that what is required is to prove guilt beyond
reasonable doubt not beyond a shadow of doubt, if only
there is a
remote possibility in favour of an accused, which can be dismissed
with the sentence 'of course it is possible, but
not in the least
probable' the case is proved beyond reasonable doubt. In
R v Blom
1939 AD 188
at page 202 to 203 Watermeyer JA said: 'In reasoning
by inference there are two cardinal rules of logic which cannot be
ignored:
(1) the inference sought to be drawn must be consistent with
all the proved facts, if it is not, the inference cannot be drawn;
(2) The proved facts should be such that they exclude every
reasonable inference from them save the one sought to be drawn. If
they do not exclude other reasonable inferences, then there must be a
doubt whether the inference sought to be drawn is correct'.
[24] The appellants' claim is
that the deceased ran away and nothing happened to him. In
Shackell
v S
[2001] 4 All SA 279
Brand AJA in 288e-f held' a court does
not have to be convinced that every detail of an accused 's version
is true. If the accused
's version is reasonably possibly true in
substance the court must decide the matter on the acceptance of that
version. Of course,
it is permissible to test the accused's version
against the inherent probabilities. But it cannot be rejected merely
because it
is improbable; it can only be rejected on the basis of
inherent probabilities if it
can
be said to be so improbable
that it cannot reasonable possible be true. In
R v Mlambo
1957
(4) SA 727
(A) at 738A it was held;' in my opinion, there is no
obligation upon the Crown to close every avenue of escape which may
be said
to be open to the accused. It is sufficient for the Crown to
produce evidence by means of which such a high degree of probability
is raised that the ordinary reasonable man, after mature
consideration, comes to the conclusion that there exists no
reasonable
doubt that an accused has committed the crime charged. He
must in other words be morally certain of the guilt of the accused.
An
accused's claim to the benefit of a doubt when it may be said to
exist must not be derived from speculation but must rest upon a
reasonable and solid foundation created either by positive evidence
or gathered from reasonable inferences which are not in conflict
with, or outweighed by, proved facts of the case.' In my view, the
claim is hollow and in the circumstances
of
the case is not
reasonably possible true. In my view, the claim that the deceased
whilst pursued by the appellants or some of them
who had a reason to
pursue him, he will, at the same time or soon thereafter, be set upon
by other persons for their own reasons
and be assaulted and killed,
is in the circumstances of the case, so improbable that it cannot
reasonably possible be true, it
is so remotely possible that it can
be dismissed with the sentence 'of course it is possible, but not in
the least probable' .
In my view, the claim as found by the trial
court is false beyond any reasonable doubt and it falls to be
rejected.
[25] The State has proved beyond
reasonable doubt that the deceased sustained the injuries
from which
he succumbed at the hands of one or some or all the appellants. There
was no evidence that all the appellants had planned
or formed prior
agreement that the deceased be assaulted. The injuries sustained by
the deceased establish beyond reasonable doubt
that the person or
persons who inflicted them did foresee the possibility of the
injuries causing death but nevertheless inflicted
the injuries which
constitute
dolus eventualis.
In the absence of a prior
agreement to assault the deceased, the next question is whether the
assault was inflicted with common
purpose on the part of all or some
of the appellants. In S
v Mgedezi and others
1989 (1) SA 687
(A), it must be shown in respect of each appellant:
(1)
He must have been present at the scene where the violence was
committed.
(2)
He must have been aware of the assault on the deceased.
(3)
He must have intended to make common cause with those who perpetrated
the
assault.
(4)
He must have manifested his sharing of a common purpose with the
perpetrators
of the assault by himself performing some act of
association with the conduct of the others.
(5)
He must have had the requisite
mens rea,
he must have intended
the deceased to be killed or he must have foreseen the possibility of
the deceased being assaulted and performed
his own act of association
with recklessness as to whether or not the assault would ensue.
[26] It was common cause that the
first and fourth appellants and their father were in his
sedan motor
vehicle whereas the second and third appellants with their mother
were in the double cab bakkie. The first appellant
was driving the
sedan vehicle and the second appellant was driving the bakkie. They
all drove to Greytown. The first appellant
stated that seeing that it
was a long matter and there was no evidence that deceased took their
money he suggested that police
be contacted which was not followed
through. He stated that they did not get the police involved since
their aim was to get the
money, they did not want anybody to get
arrested and they did not want anybody to die, their aim was first to
get the money and
that there was no need for them to get angry
because if the money was not recovered, there would have been no one
to pay the money.
It seems to me to be a strange co-incidence that
the deceased was placed in the boot of the motor vehicle owned by and
driven by
the first appellant. The deceased was still in the boot of
the first appellant's vehicle driven by him when he was driven away
after his mother had requested that he be punished in her presence
and the first appellant and his father said they will not do
so
because they did not want the mother of the deceased to witness the
beating. Even if that was said by the appellant's father,
it matters
not because it was said in the presence of the first appellant and
the deceased was his captive. In my view, Zulisile
is telling the
truth that she was left at or near Magwaza's homestead, not as
claimed by the appellants that they drove away with
her and she said
they must take the deceased with them and place him between two
appellants in the bakkie when they exchanged the
vehicles. She had
nothing to do with the exchange of the vehicles and how the deceased
was taken away. It is likely that she wanted
to see what was
happening to the deceased as she had been involved in the search of
the deceased and the recovery of the bulk of
the money. In any case,
third appellant admitted that her home was near Magwaza's home.
[27]
The
first appellant testified that he asked how they were going to
receive the remaining R2 000. He suggested that they report the
matter to the police, but he was persuaded that it was not necessary
because the remaining money shall be recovered. In my view,
this
indicate, in contrast to the other appellants, the first appellant's
commitment that the money be recovered. The deceased
was assaulted in
relation to the theft of the money. Again, in my view, it is no
co-incidence that when the deceased was transferred
from the boot of
the sedan vehicle to the bakkie, the first appellant transferred with
him. In fact, the evidence is that he removed
the deceased from the
sedan to the bakkie and he placed him between the third and fourth
appellants at the back seat to ensure
that he does not escape. The
first appellant left his own vehicle to be with the deceased. The
first appellant stated that he wanted
the deceased to assist them to
recover the remaining money. He sat in front in the bakkie and the
second appellant drove the bakkie.
He had to leave his own vehicle to
be in the vehicle with the deceased. It was the first appellant on
hearing of the death of the
deceased who proceeded to the mother of
the deceased and stated that they had no intention to kill the
deceased and he suggested
to her to go to the police station to
identify the body. In my view, he knew that the body was that of the
deceased and he knew
what had happened to the deceased.
[28]
The first appellant, the evidence shows, took upon himself that the
money is or be recovered.
His claim that when the deceased ran away,
and the third appellant chased him, they immediately called back the
third appellant
because they were not concerned is inconsistent with
their actions. They had looked for the deceased driving long
distances for
two days from the part of the night the deceased
disappeared with the money. They ensured that the deceased does not
escape by
placing him in the boot of the vehicle. They kept the
deceased in the boot from 9H30 to about 14HOO. It seems they were
desperate
to find the money and to do something to the deceased. The
first appellant according to the evidence of Zulisile played the
dominant
role and he also happens to be the eldest brother amongst
the three appellants who are his brothers. The first appellant stated
that ii was still in the morning when the deceased was apprehended
and placed in the boot of the sedan vehicle and it was at about
15h30
when the deceased ran away. It was near the home of the appellants.
The deceased ran away in broad day light in an area where
he had
relatives and the following morning he was found near the place where
he allegedly had ran away having been beaten to death.
[29]
The first appellant testified that the body of the deceased
was found about a kilometer from where he escaped from them. The
appellant
did not see any person pursuing the deceased. It is highly
unlikely that at the same time as the deceased was escaping from the
appellants he will be set upon and be fatally assaulted by other
people, in particularly in a sparsely populated rural area. The
circumstances establish that it is the appellant, one or some of them
who assaulted the deceased to death.
[30]
The
nature of the injuries sustained by the deceased does not indicate
whether one or more instruments were used to inflict the
injuries.
The money stolen belonged to the third appellant and the theft caused
concern to the entire family of the appellants.
Some appellants had
interest in the matter as much as their parents and it may not be
concluded that all of them were involved
in the assault to of the
deceased. All the appellants know what happened to the deceased, but
they have no duty to explain to the
court what happened, therefore,
no adverse inference may be drawn against them. The question is
whether the evidence acceptable
to the court proves the guilt of each
appellant beyond reasonable doubt. The fact that they have given a
version which is inherently
improbable does not strengthen the State
case against each appellant.
[31]
Zulisile was not able to make a clear distinction amongst the
second, third and fourth appellants, but she was certain regarding
the first appellant. She was certain that it was the first that
appellant that came to her residence with his parents late in the
evening on the date the deceased stole the money, and that the first
appellant drove the vehicle in which the deceased was placed
in the
boot, and that it was the first appellant and his father who told her
that they were taking the deceased away to hit him.
She testified
that it was the first appellant who said they will not take the
deceased to the police because they do not work with
the police and
that it was the first appellant who was too vocal.
[32]
The
circumstantial evidence established a strong
prima facie
case
against the first appellant and a strong suspicion against the other
appellants. The other appellants gave improbable versions
but this is
not enough to constitute guilt beyond reasonable doubt and it remains
a strong suspicion against them. In my view,
the trial court erred in
finding that the case against the other three appellants was proved
beyond reasonable doubt. In applying
the
Mgedezi
principles to
them there may be those who were there to see what was happening and
may be to assist, if so, requested. They are
entitled to the benefit
of the doubt.
[33] On the evidence, the first
appellant clearly manifested an intention to retrieve the money
by
means of an assault if necessary. The evidence indicates that he
played the major role in kidnapping the deceased, placing him
in the
boot of the vehicle, openly stating that the deceased was being taken
away to be beaten up. The evidence show that the deceased
was beaten
up in the same evening he was with the appellants and it is the same
afternoon he was last seen alive. The nature of
the assault indicates
that the person inflicting the injuries must have foreseen and there
did foresee that death would result
which constitute dolus
eventualis. The first appellant has not given any explanation
consistent with innocence. The trial court
was correct in rejecting
his version as false beyond reasonable doubt In my view. the trial
court correctly convicted the first
appellant on the charged of
murder. It was argued before us that at least the appellants could be
guilty of culpable homicide or
assault with intent to do griouvous
bodily harm. I cannot agree, the severity of the injuries sustained
by the deceased show that
it was a brutal assault over a period of
time and the deceased was left to die.
[34]
I
propose the following order:
(1)
The
first appellant's appeal against the conviction on the charge of
murder is dismissed. The conviction and sentence are confirmed.
(2)
The
second, third and fourth appellants' appeal against convictions is
upheld.
Their convictions and sentences are set aside.
MNGADI.
J
I agree,
and it is so ordered.
K.
PILLAY, J
APPEARANCES
Case
Number
: AR 336/17
For the
Appellants
: L BARNARD
Instructed
by
: Messrs. Nel and Stevens
Attorneys
GREYTOWN
For the
respondent
: PWR MANCIYA
Instructed
by
: DEPUTY DIRECTOR OF PUBLIC
PROSECUTIONS
Matter
argued on
: 26 October 2018
Judgement
delivered on