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[2017] ZAKZPHC 1
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Mthembu and Another v S (AR339/2016) [2017] ZAKZPHC 1 (6 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO. AR339/2016
In
the matter between:
THAMSANQA
GOODENOUGH MTHEMBU FIRST
APPELLANT
THULANI
CYRIL
KHUZWAYO SECOND
APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
NKOSI
AJ
[1]
This is an appeal by the first and second appellants against both
their convictions and sentences for crimes committed on two
separate
occasions. According to the indictment, the appellants were charged
with a total of six counts. These included the murder
of one Subusiso
Welcome Mbatha (“Mbatha”) committed on 21 April 2005, the
robbery of Mbatha with aggravating circumstances
committed on the
same date, the murder of one Mthunzi Almon Mlambo (“Mlambo”)
committed on 21 April 2005, the robbery
of Mlambo with aggravating
circumstances committed on the same date, as well as the unlawful
possession of a firearm and ammunition.
[2]
Both appellants pleaded not guilty to all charges preferred against
them. The first appellant elected to remain silent and put
the state
to the proof of all charges preferred against him. The second
appellant, on the other hand, instructed his attorney that
he could
not specifically recall where he was on the dates when the aforesaid
offences were committed, but denied that he committed
any of the
offences with which he was charged.
[3]
Prior to leading evidence to prove the charges preferred against the
appellants, the prosecutor addressed the court in terms
of section
150 of the Criminal Procedure Act 51 of 1977 (“the Act”).
In his address, the prosecutor stated that in
proving the charges
preferred against the appellants, the state would rely on
circumstantial evidence as there were no eye witnesses
to the
commission of the crimes with which the appellants were charged.
Instead he said, the appellants were linked to the commission
of such
crimes by certain items identified by witnesses as belonging to the
two deceased, namely, Mbatha and Mlambo.
[4]
After hearing the evidence presented by various state witnesses
against them, each appellant decided to testify on his own behalf.
Starting with the first appellant, his evidence was essentially the
denial of any involvement in the commission of the crimes with
which
he was charged. Instead, he pointed a finger at his co-accused.
Although he admitted to having been present when certain
goods
belonging to the two deceased were sold, he denied having played an
active role in the sale of the goods concerned. This
was
notwithstanding the damming evidence by the purchasers of such
goods,
[1]
which collectively put the first appellant at the very centre of the
illicit sale transaction of the stolen goods.
[5]
Further evidence linking the first appellant to the commission of the
offences with which he was charged were the black bag,
certain
clothing items and compact disks found in his room.
[2]
These were positively identified by one of the state witnesses as
belonging to one of the deceased, Mlambo. This was expressly
admitted
by the first appellant in his evidence,
[3]
although he claimed to have received the said items as gifts from the
second appellant.
[6]
In addition to the above, one of the state witnesses
[4]
had also testified that both appellants had come to his place in the
deceased, namely Mlambo’s vehicle to collect their ill
begotten
loot from the sale of the car speakers and the sub-woofer that were
stolen from the same car. Although this was denied
by both
appellants, the cumulative effect of such evidence was found credible
by the trial court, and was taken into account by
that court in
convicting both appellants for the murder of Mlambo.
[7]
In my view, the fact that the first appellant was not in possession
of the murder weapon does not in any way exonerate him from
the
murder conviction, particularly, in the light of the evidence by one
of the state witnesses that he was the one who led the
police to its
location at the second appellant’s house. Taken cumulatively
with other evidence, his knowledge of the location
of the murder
weapon could not simply be ignored by the trial court. It was yet
another to the chain of items linking the first
appellant to the
murder of Mlambo.
[8]
Therefore, having considered in its totality the amount of evidence
led by the state against the first appellant in the trial
court, I am
satisfied that the trial judge had correctly found the first
appellant guilty of murder as set out in count 3 of the
indictment in
respect of the deceased, Mlambo. The same applies to the first
appellant’s conviction of the other crimes as
set out in counts
4, 5 and 6 of the indictment.
[9]
This brings me to the second appellant’s testimony before the
trial court. Faced with the overwhelming evidence by the
state
witnesses linking him to certain items belonging to the deceased,
Mbatha and Mlambo, the second appellant did not deny knowledge
of
such items, or his possession thereof at some stage after the murder
of the deceased. Instead, he alleged that he, together
with the first
appellant, had acquired the said items from a certain Bongani Nzama,
who allegedly requested their assistance in
either selling the items,
or collecting payment from the purchasers thereof. For some
inexplicable reason, the second appellant
did not call Nzama to
corroborate his evidence.
[10]
In response to the questions posed to him by his attorney regarding
the evidence given by the first appellant implicating him
which, in
essence, was to the effect that he alone sold the goods belonging to
the two deceased and gave some of them to the first
appellant as
gifts, the second appellant had repeatedly stated that the first
appellant was lying to the court. He testified that
the fist
appellant had admitted to him that he was induced by the police to
implicate him in the commission of the offences with
which they were
charged, and promised to release him in return. This was denied by
the first appellant.
[11]
Just like the first appellant, the amount of evidence linking the
second appellant to the commission of the crimes with which
he was
charged and convicted was simply overwhelming. Firstly, he was
positively linked to the murder of Mlambo by the keys to
Mlambo’s
vehicle found in his room, as well as the compact disks which were
positively identified by witnesses as belonging
to Mlambo. This,
taken cumulatively with the evidence that the firearm used in the
murder of Mlambo was found at the second appellant’s
house,
leaves me in no doubt that the trial court was, once again, correct
in its conviction of the second appellant of the murder
of Mlambo, as
well as the other crimes set out in counts 4, 5 and 6 of the
indictment.
[12]
Of course, the circumstances are different with regard to the murder
of Mbatha. In the absence of any evidence positively linking
the
first or second appellant to the murder of Mbatha, the trial court
was correct in convicting both appellants in terms of section
260 of
the Act of a lesser competent verdict of receiving stolen property,
knowing it to be stolen. This is in the light of the
credible
evidence given by the state witnesses which linked both appellants to
certain items or goods belonging to the deceased,
Mbatha.
[13]
With the leave to appeal in respect of count 2 having been refused by
the court
a quo
, the first and second appellants’
conviction for count 2 will obviously remain in place. Unfortunately,
while their conviction
of a lesser competent verdict may come as a
relief to both appellants, that does not bring any closure to
Mbatha’s family,
whose gruesome murder remains unresolved.
[14]
Lastly, it is not clear form the appeal records as to whether either
one or both appellants were also appealing against the
sentences
imposed by the trial court for the crimes for which they were
convicted. In so far as it may be contended that this was
the case, I
am not persuaded that there is anything in this case which justifies
this court interfering with the sentences imposed
by the trial court
against both appellants for the crimes for which they were
convicted. In the circumstances, their sentences
will
accordingly stand.
[15]
I propose that the following order should be made:
(a) That the appeal be dismissed.
(b) The convictions by the court
a
quo
of accused 1 and 2 in respect of all counts are confirmed.
(c) The sentences imposed by the trial
court are confirmed.
………………………………
.
NKOSI
AJ
………………………………
.
JAPPIE
JP
………………………………
.
MNGUNI
J
Appeal
heard on :
30 January 2017
Counsel
for the First Appellant :
Mr PB Ndlela
Instructed
by :
Messrs P.B. Ndlela & Company
Counsel
for the Second Appellant :
Mr S Matthews
Counsel
for the State :
Mr J Du Toit
Instructed
by :
The Director of Public Prosecutions
Judgment
handed down on :
06 February 2017
[1]
Pages 27-28 of the appeal record; page 58 of the appeal record; pages
61-65 of the appeal record
[2]
Evidence of Xalani Xaba, pages 175-176 of the appeal record
[3]
Page 210 para 20 of the record
[4]
MD Mkhize, page 30 of the appeal record