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[2016] ZAKZPHC 41
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Siyaya v S (AR384/15) [2016] ZAKZPHC 41 (17 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO: AR384/15
DATE: 17 MAY 2016
NOT REPORTABLE
In
the matter between:
MSINDISENI
ABEDNEGO
SIYAYA
..............................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
Delivered
on: TUESDAY, 17 MAY 2016
OLSEN
J (XOLO AJ concurring)
[1]
The late Mr Mbuyiseni Moloi (who I shall call “the deceased”)
died on 20 or 21 February 2010. According to the post
mortem report
and the evidence of its author, a Dr Gumbi, the deceased died as a
result of multiple injuries inflicted by more
than one instrument.
The injuries were of different appearance and of different severity.
From other evidence presented it is apparent
that these injuries were
inflicted by a sjambok and one or more other sticks.
[2]
Arising out of the death of the deceased, on 12 November 2014 Mr
Msindiseni Abednigo Siyaya was convicted on a charge that he
murdered
the deceased, and on 17 March 2015 he was sentenced to 12 years
imprisonment for that crime. He now appeals against both
his
conviction and sentence.
[3]
The appellant was originally charged with seven other accused. Not
all of them were ultimately tried. Those that were belonged
to a
local Community Policing Forum operating in the area in which the
deceased was killed, and for the sake of convenience I will
refer to
those accused as the “CPF” members. The CPF members who
were tried were acquitted.
[4]
In his heads of argument, and subsequently at the outset of the oral
argument in this appeal, counsel for the appellant conceded
that the
conviction of murder could not be sustained, and that the appellant
ought to have been convicted of assault with intent
to do grievous
bodily harm. The reason for that concession is best dealt with after
an account of the facts.
[5]
The two material witnesses for the State were Mr S H Mkhonza and Mr D
E Thomo. Neither the appellant nor any of the CPF
members gave
evidence. The appellant and the CPF members were separately
represented during the trial.
[6]
The appellant is a farmer in the greater Vryheid area. Shortly before
18 February 2010 the appellant found himself the victim
of stock
theft. The belief seems to have been that after they had been stolen
the cattle in question were slaughtered and eaten.
[7]
On 18 February 2010 the appellant telephoned Mr Thomo who was the
chairperson of the CPF. He advised Mr Thomo that assistance
was
required and that the theft of the cattle had been reported to the
police. Subsequently on 20 February 2010 the appellant
and Mr
Thomo met and Mr Thomo was advised by the appellant that the latter
had obtained a list of names of people involved in the
slaughter of
his cattle and that he required the assistance of the CPF in that
regard. The deceased was one of those persons.
Ignoring
unnecessary detail, what happened, according to Mr Thomo, was that
the deceased was picked up by Mr Thomo and one of the
CPF members, as
was Mr Mkhonza at the request of the deceased, after which that party
was joined by the remaining CPF members.
All these people then
met the appellant and boarded his bakkie with a view to being
transported to a police station. Instead
of driving to the
police station the appellant took the road to his own farm where,
after the passengers had alighted, he directed
that all of them
should enter a small building situated next to the farm house, which
was done.
[8]
Mr Thomo says that there were two boys and a woman he did not know in
the yard of the farm when they arrived. When everyone
was
inside the building to which they had been directed the appellant
instructed the boys to bring a rope, which was done.
He
produced a sjambok in the presence of Mr Thomo and also instructed
the boys to go and fetch a stick that had been left by thieves
in a
kraal. According to Mr Thomo he then decided that he had better
telephone the police. He left the room in which
the others were
with the deceased, and moved away so that the others could not see
that he was making a phone call. He telephoned
the Emondlo
police and was told that no police van was available as the station
was busy. He then telephoned a Mr Mazibuko
who he understood to
be the investigating officer with regard to the complaint of stock
theft made by the appellant. Mr Mazibuko
arrived on the scene,
but very much later.
[9]
From outside the building Mr Thomo then heard the cries and screams
of the deceased and what appears to have been general noise.
He
called out two of the CPF members from the building and told them
that what was happening was wrong. But that did not
stop
proceedings. He heard the deceased protest his innocence,
saying that he did however know the people who had slaughtered
the
appellant’s stock. He heard the appellant saying to the
deceased that the latter should reveal the names of the
persons who
stole the stock. Eventually the noise died down.
[10]
The account of the events of the night of 20 February 2010 thus far
is derived from the evidence of Mr Thomo, and must be interrupted
in
order to consider the evidence of Mr Mkhonza. According to Mr
Mkhonza he was in the building or room in which the assault
took
place from when it commenced to when it ended. On his evidence
the deceased was tied up with a rope and the appellant
wielded the
sjambok striking the deceased many times. Sticks were also
used. The whole group (the appellant together
with the CPF
members) participated in the assault. The deceased, he says,
protested his innocence throughout. The assault
only stopped,
according to Mr Mkhonza, when the deceased died. In his
judgment the learned magistrate made no particular
comment about Mr
Mkhonza’s evidence. In giving his brief account of the
events of that night the magistrate did not
indicate clearly whose
evidence he was drawing on, but it does appear that he found the
evidence of both the chief State witnesses
to be credible and
reliable.
[11]
However there were some contradictions between the evidence of Mr
Mkhonza and that of Mr Thomo. One of them is plainly
material.
According to Mr Thomo whilst the assault was underway Mr Mkhonza was
not inside the room but on the verandah of
the building. Mr
Thomo was absolutely clear on that point, and Mr Mkhonza was equally
adamant that he was inside. However
both witnesses say that the
door leading into the building and the room in which the assault took
place was open throughout.
It is not impossible that Mr Mkhonza
did not distinguish between the verandah and the room itself; nor was
that he saw what going
on from the verandah. Be that as it may,
Mr Mkhonza confessed more than once during the course of his evidence
that he regarded
himself as mentally unstable. This was
apparently the result of some difficulties he had experienced in the
past. In
my view it would be unsafe to rely on Mr Mkhonza’s
evidence save where it is corroborated by that of Mr Thomo, assuming
that
the latter’s evidence is acceptable, a subject to which I
will revert. (As will be seen, this approach is consistent
with
the State’s concession that assault with intent to do grievous
bodily harm as opposed to murder was the proper verdict.)
[12]
Reverting to an account of the events of the night, when the noise
had subsided, according to Mr Thomo the appellant emerged
from the
building and said that he had got a few names and that these persons
should be collected. Mr Thomo refused to go
along with this and
instead requested the appellant to take Mr Mkhonza back to town,
which is what the appellant agreed to do.
After Mr Mkhonza had
been dropped off they (the appellant, Mr Thomo and one of the CPF
members who had gone with them) returned
to the farm.
[13]
On their return Mr Thomo found four of the CPF members standing
around outside the building in which the assault had taken
place.
It is only at that stage that Mr Mazibuko arrived. Mr Thomo
reported to him as to why he had telephoned him,
but then Mr Mazibuko
and the appellant moved a distance away and spoke privately.
After that conversation Mr Mazibuko reverted
to the appellant telling
him that he (Mazibuko) had received a call which required him to rush
back, and that Mr Thomo should continue
to do his job of helping the
police. This led the magistrate to state in his judgment that
Mr Mazibuko’s conduct on
the evening in question should be
reported to the National Commissioner of Police.
[14]
According to Mr Thomo he did not then know that the deceased had
died. He went into the room and saw him lying on his
back with
his leg and hands tied with a rope which had been fetched earlier.
He noticed the wounds which the deceased had
sustained. He soon
realised that the deceased was dead, either because of his own
observations; or because the appellant
gave instructions that the
body should be removed from the farm; whilst a woman who was present
suggested that the body should
be burnt. Mr Thomo thought it
better to go along with the appellant’s suggestion, and
assisted in loading the body
of the deceased onto the appellant’s
bakkie which then transported the body with the CPF members and the
appellant on board
to a residential area apparently on the outskirts
of Emondlo, where the body was dumped. The appellant then left
that scene
on his own.
[15]
Mr Thomo again phoned the police and was told that he would have to
wait. He eventually suggested to the CPF members
that they
should leave and he himself waited until about 4 o’clock in the
morning when, because of rain and cold, he felt
that he should leave
also. He was later contacted by the police to give his account
of events of the night.
[16]
Before Mr Thomo commenced his evidence the prosecutor requested the
magistrate to administer a warning in terms of s204 of
the Criminal
Procedure Act. It is not clear why that was done. Perhaps
it was in the nature of a precautionary measure
given that Mr Thomo
was indeed involved in the events of the night in question.
However on Mr Thomo’s evidence, he
got caught up in events
which were directed by the appellant throughout, and he tried at all
material times to secure the assistance
of the police in order to put
a stop to what was going on once he realised what the appellant’s
intentions were. There
is nothing on the record before us to
show that the prosecution was in any way dissatisfied with what Mr
Thomo had to say.
[17]
In considering Mr Thomo’s evidence it is impossible to overlook
that the cross-examination of him by the lawyer representing
the
appellant was for the most part a form of verbal assault. It
was rude, demeaning and intended to intimidate the witness.
It
was unjustifiable and should not have been allowed. In the
result, on my assessment of the record, that approach by the
appellant’s lawyer did his client more harm than good, as Mr
Thomo emerged from the ordeal unscathed. In the course
of this
evidence which might have been challenged, because it was material to
the proposition that the appellant was innocent,
was left
unchallenged. Putting aside Mr Mkhonza’s evidence, Mr
Thomo’s evidence that the appellant called for
the rope, that
the deceased was tied up with that rope, that the appellant was on
the scene with a sjambok, and that he was present
and clearly
directing the assault (whoever from time to time wielded the weapons
used in the assault), was not specifically challenged.
It was
only at the end of Mr Thomo’s cross-examination that some
element of a defence case was revealed when it was put that
it was Mr
Thomo, and not the appellant, who had a list of names of persons who
had slaughtered the cattle; that wherever the appellant
drove his
bakkie it was on the instructions of Mr Thomo; that it was Mr Thomo
who assaulted the deceased at the farm and indeed
also put a plastic
bag on his face; and that the appellant, in the course of this, had
told Mr Thomo to desist from the assault
because the person was doing
to die. All these propositions were put baldly in the course of
a few sentences, without any
detail being provided; with the result
that Mr Thomo could do nothing but make equally bald denials.
Of course, as already
mentioned, the appellant did not enter the
witness stand in order to make this case. Mr Mkhonza was not
challenged on his
evidence that Mr Thomo did not participate in the
assault. It was not put to Mr Mkhonza that Mr Thomo had
directed matters.
[18]
In my view the decision of the magistrate to accept the evidence of
the State witnesses was proper and is unassailable, save
to the
extent that it is implicit in the magistrate’s finding that the
appellant was guilty of murder, that he accepted the
evidence of Mr
Mkhonza that the deceased was dead before he (Mr Mkhonza) was taken
by the appellant in the appellant’s bakkie
back to town.
[19]
The State’s concession in this appeal is that it failed to
prove that the beating which preceded the appellant’s
emergence
from the building, and his continuing absence from it while Mr
Mkhonza was taken back to town, caused the death of the
deceased.
It may be improbable, but it is nevertheless reasonably possible,
that the assault upon the deceased continued
at the hands of the CPF
members who remained behind, which resulted in the death of the
deceased.
[20]
The conclusion I reach is that the State proved that the appellant
was the leader, director and participant in vigilante action,
including an assault on the deceased, directed at obtaining
information from him. He accordingly ought to have been
convicted
of assault with intent to do grievous bodily harm.
[21]
Turning to the question of sentence, as mentioned earlier the
magistrate imposed a sentence of 12 years imprisonment on a
conviction of murder. Given that the appeal against that
conviction must be upheld, and replaced with a finding that the
appellant is guilty of assault with intent to do grievous bodily
harm, the question of sentence must be revisited. But I think
that whilst assault is a lesser crime than murder, on the facts of
this case the level of moral blameworthiness which attaches
to the
one is not that much less than the level of blameworthiness attaching
to the other. But having said that, it was mentioned
in
argument, correctly I think, that it would have been arguable that
the correct verdict was culpable homicide if the State had
managed to
prove the causal link between the assaults perpetrated by and under
the immediate direction of the appellant, and the
death of the
deceased.
[22]
In sentencing the appellant the magistrate had before him a report of
a probation officer as well as a report from the Department
of
Correctional Services. The former recommended a sentence of
imprisonment and the latter found the appellant a suitable
candidate
for correctional supervision. The authors of the reports gave
evidence. Neither of the social workers found
any sign of
remorse on the part of the appellant. He did allege, when
interviewed, that he had made what might be called
an
ex
gratia
payment (
ex
gratia
because he continued to deny his
responsibility for the death of the deceased) to the deceased’s
mother. But when she
was interviewed to gauge victim impact,
she denied that there had been any such approach or payment. It
appears that the
deceased ran a small tuckshop in order to support
his mother and four children (aged between 5 and 10 years). In
short the
deceased was a man who lived in humble circumstances in a
large rural area.
[23]
There is some conflict between the reports to which I have referred
concerning the personal circumstances of the appellant,
and indeed
some conflict between statements made from the bar on behalf of the
appellant during the sentencing proceedings, and
those reports.
Looking past these issues, which are not of great import, the
position is broadly as follows. The
accused was 49
years of age at the time when sentence was first imposed. He
appears to have fathered 18 children, five of
whom were majors at the
time when sentence was passed. He has two wives and is
responsible for his parents and his maternal
family. Until he
was sentenced he was a self-employed man who owned two shops, two
taverns and two farms which, according
to the appellant, would
generate a profit of about R20 000,00 per month. Measured
by the standards of the community,
and certainly by the standards of
those no more fortunate than the deceased, the appellant presents as
a wealthy and prominent
citizen. He had no previous
convictions.
[24]
Turning to the crime, it must be noted immediately that the beating
to which the deceased was subjected was dreadful.
The appellant
was the director of it, but not the sole active participant in it.
The assault amounted to vigilante action
undertaken at the behest and
for the benefit of the appellant. It is conduct of the type
which strikes fear into the hearts
of members of the community less
fortunate than the appellant, who are generally ultimately dependent
on people like the appellant
for employment opportunities and the
like. Whether the deceased was guilty or not of stock of theft
(or of having joined
in the eating of the slaughtered stock, if that
be the case) is neither here nor there. He was deprived of the
benefit of
a fair trial which was given to the appellant.
Society cannot afford to have our courts treat cases like the present
one
with excessive leniency. An approach which generates a
sense of despair in the community about the realisation of the right
to protection of the law, particularly when the vulnerable must
inevitably live to some extent dependent upon, and in the shadow
of
the wealthy and powerful, has the potential to cause serious harm to
societal structures.
[25]
Nevertheless all components of the traditional triad must be brought
to account and, as pointed out by the learned magistrate
in his
judgment on sentence, a measure of mercy should not be overlooked as
a component of the enquiry.
[26]
A substantial sentence (bearing in mind that we are now dealing with
a conviction of assault with intent to do grievous bodily
harm), a
part of which is suspended, would be appropriate.
The
following order is made.
[1]
The appeal against the conviction of murder is upheld.
[2] The
conviction of murder is set aside and in its place the appellant is
convicted of assault with intent to do grievous bodily
harm.
[3] The
appeal against the sentence of 12 years imprisonment is upheld.
[4] The
sentence of 12 years imprisonment is set aside and replaced with a
sentence of 8 years imprisonment, three years of which
are suspended
on condition that the appellant is not convicted of a crime involving
assault committed during the period of suspension.
The sentence
is ante-dated to 17 March 2015.
OLSEN
J
XOLO
AJ
Date
of Hearing: THURSDAY, 05 MAY 2016
Date
of Judgment: TUESDAY, 17 MAY 2016
For
the Appellant: Mr RM Ntshangase
Instructed
by: Mthethwa Attorneys
Appellant’s
Attorneys
5
Lower Level,
Edwards
Building
10
Union Street
Empangeni…KZN
(Ref.…)
(Tel
No.: 035 – 772 7411 / 035 772 5588)
For
the Respondent: Mr DC MacDonald
Instructed
by: Director of Public Prosecutions
Respondent’s
Attorneys
6
th
Floor, Southern Life Building
88
Joe Slovo Street
Durban
(Ref.
Mr DC MacDonald)
(Tel.:
031 – 3345114 / 033 – 845 4400)