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[2016] ZAECMHC 19
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Mabhengu and Another v S (CA&R61/147) [2016] ZAECMHC 19 (28 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION – MTHATHA
Case
no: CA&R61/147
Case
Heard: 11/03/16
Date
Delivered: 28/04/16
In
the matter between:
SIBONGISENI
MABHENGU
1
ST
APPELLANT
SINETHEMBA
MABHENGU
2
ND
APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
SMITH
J:
[1]
The
appellants and their co-accused were convicted of murder in the Mount
Frere Regional Court on 10 April 2014, and sentenced to
10 years’
imprisonment each. They appeal against their convictions with the
leave of the court
a
quo.
[2]
The
state alleged that the appellants and their co-accused, acting with
common purpose, unlawfully and intentionally killed one
Lucky Godfrey
Mcasa (“the deceased”) by stabbing him with a knife or
knives. The post-mortem examination has established
that the cause of
death was a single knife wound to the heart.
[3]
They
all pleaded not guilty and did not proffer any plea explanations.
[4]
At
the hearing of the appeal the appellants were represented by Mr
Zilwa
SC
,
and it is a matter of great concern that there was no appearance on
behalf of the state. While comprehensive heads of argument
(prepared
by Ms Trietsch) were filed by the state, there has not been any
explanation by the office of the Director of Public Prosecutions
(“the DPP”) why the state was not represented at the
hearing of the appeal. In our view this is a rather serious matter
since this conduct not only amounts to an unacceptable discourtesy to
this court, but in our view also amounts to a serious dereliction
of
duty on the part of that office. We accordingly direct that a copy of
this judgment must be transmitted to the office of the
DPP, Mthatha,
for appropriate action.
[5]
In
convicting the appellants and their co-accused, the magistrate found
that the state proved beyond a reasonable doubt that they
acted with
common purpose when they attacked and stabbed the deceased.
[6]
The
state relied on the evidence of two witnesses, namely Mzolisi Mbasane
and Sivuyile Mngambi.
[7]
Mzolisi
Mbasane is the deceased’s nephew. On Sunday 26 September 2010
he and the deceased were at a local tavern when the
appellants and
their co-accused, Sibusiso Sigwili (who was accused no 1 in the court
a
quo)
also arrived. Sigwili then accused Mbasane of making a sign
signifying that he is a member of a prison gang, and an argument
ensued
between them. The deceased intervened and suggested that they
should rather move to a different room in the tavern.
[8]
After
they have moved to that room, the appellants and Sigwili again
confronted them, and the second appellant attempted to hit
him. When
he got up to defend himself, the deceased again intervened. At that
stage they had also been joined by the other state
witness, Sivuyile
Mngambi.
[9]
The
deceased, who was by then already fairly inebriated, requested him
and Mngambi to accompany him home.
[10]
After
they had left, the appellants and Sigwili followed and eventually
caught up with them. Sigwili and the second appellant brandished
knives, and the latter threatened to assault him. The deceased and
Mngambi again intervened and the appellant’s group thereafter
left. He, the deceased and Mngambi also thereafter proceeded in the
same direction, walking behind the appellant’s group.
[11]
At
some stage the deceased moved off to the other side of the road,
apparently to urinate. Mbasane then saw the deceased falling
down and
the appellants and Sigwili running away. He and Mngambi rushed to the
deceased and found him bleeding from a wound in
his chest.
[12]
Although
he did not see who had stabbed the deceased, he assumed that it must
have been one of the appellant’s group because
he had seen them
turning around, approaching the deceased, and thereafter running away
from the scene after the deceased had fallen
down. He was about 15
metres from the deceased at the time.
[13]
Apart
from him, the deceased, Mngambi and the appellant’s group there
was nobody else in the vicinity. Although the visibility
was not good
there was some illumination by virtue of moonlight. He knew the
appellants and Sigwili well as they all grew up together
in the same
area.
[14]
Sivuyile
Mngambi had also grown up in the same area as the appellants and
Sigwili, and he also knew them well. He testified that
upon his
arrival at the tavern he saw the two groups quarrelling. It appeared
to him that the appellant’s group wanted to
assault Mbasane. He
and the deceased intervened and they managed to defuse the situation.
He, Mbasane and the deceased thereafter
left on the latter’s
request.
[15]
The
appellant’s group followed them, and eventually caught up with
them along the way. They again wanted to assault
Mbasana. The
second appellant and Sigwili were brandishing knives and threatened
to stab him.
[16]
He
and the deceased again intervened and the appellants and Sigwili then
walked away. They also proceeded in the same direction,
walking
behind the appellant’s group. At some stage the deceased told
them that he wanted to urinate, and moved to the other
side of the
road. The appellants and Sigwili then turned around and approached
the deceased.
[17]
Although
he initially said that he saw them stabbing the deceased, in reply to
a question by the prosecutor as to what they stabbed
him with, he
replied that it was “with a knife”. Upon further
questioning by the prosecutor, it transpired that he
had seen one of
the appellants’ group stabbing the deceased, but could not say
which one. All three of them ran away after
the deceased fell down.
He and Mbasane then rushed to the deceased. He noticed that the
deceased was bleeding from a wound on the
left side of the chest.
[18]
He
was about 15 metres away from the deceased when he saw him being
accosted by the appellants and Sigwili. He also confirmed that
although the visibility was poor, there was some illumination by
virtue of the moonlight.
[19]
The
appellants gave a totally different version of the events at the
tavern and the circumstances of the attack on the deceased.
According
to them Mbasane was the aggressor. After insisting that he
wanted some of their liquor, he quarrelled with the
second appellant.
The owner of the tavern then moved Mbasane, the deceased and Mngambi
to a different room where they were locked
in.
[20]
When
the appellant and Sigwili left, Mbasane’s group jumped through
the window and pursued them. They eventually caught up
with them, and
Mbasana told Sigwili to come and play “cha-cha”,
thereafter slapped him, and assaulted the second appellant
with a
knife on the bridge of his nose. Mbasane’s group then chased
Sigwili who had run away. After they had cleaned the
second
appellant’s wound they both proceeded home. Along the way they
came across the deceased who was clutching the left
side of his
chest. The appellants’ also gave different accounts of the
words that the deceased allegedly uttered: according
to first
appellant he said: “he has finished me’, and according to
second appellant: “they have finished me”.
They both
denied that they were carrying knives on the night in question.
[21]
Mr
Zilwa
argued
that the state failed to establish that the appellant and their
co-accused acted with common purpose, and that the magistrate
should
have found that they versions were reasonably possibly true.
[22]
In
our view the magistrate was justified in accepting the evidence of
the two state witnesses. They both appeared to have been good
and
truthful witnesses, and were prepared to concede that neither of them
saw which of the appellant’s group had stabbed
the deceased.
Mngambi’s testimony in this regard was significantly more
specific than that of Mbasane. While Mbasane had
only seen the
appellants and their co-accused approaching the deceased and
thereafter running away from the scene after the deceased
had fallen
down, Mngambi had actually seen them attacking the deceased, although
he could understandably not see which one of them
inflicted the stab
wound. They have, however, otherwise corroborated each other in all
material respects.
[23]
On
the state’s version then the appellants and Sigwili were acting
in concert, both during the altercation at the tavern and
subsequently when they accosted and attacked the deceased. And there
can be little doubt that on that version they acted with common
purpose, and regardless of which one of them had stabbed the
deceased, all three of them would accordingly have been guilty on
the
basis of the doctrine of common purpose.
[24]
That
inference is ineluctable and compelling and I did not understand Mr
Zilwa
to
contend otherwise.
[25]
Mr
Zilwa
argued,
however, that the appellant’s version to the effect that
Sigwili was chased by Mbasane’s group and that the
two of them
remained behind, was reasonably possibly true, and on that version
common purpose would not have been established by
the state.
[26]
On
the facts of the case the inference that the deceased must have been
killed by one of the appellant’s group was so compelling
that
neither of them, nor their co-accused, has contended otherwise. This
much was clearly established by the evidence which was
common cause,
namely that only the two groups were present at the time, and that
for obvious reasons it was improbable that either
of the state
witnesses would have attacked the deceased.
[27]
The
issue of visibility is therefore not important insofar as
identification of the deceased’s assailants is concerned, and
would only have had some relevance in respect of the state witnesses’
claims that they saw the appellant’s group approaching
the
deceased and running away after he had fallen down. There can be
little doubt that the illumination provided by the moonlight
would
have been more than sufficient for the state witnesses to
conclusively see the appellants’ group approaching the deceased
from a distance of 15 metres.
[28]
The
appellants and their co-accused were thus constrained to accept the
ineluctability of that inference. Both appellants appeared
to have
insinuated that Sigwili was the one who had stabbed the deceased.
Crucially then it was that explanation that must pass
muster as being
reasonable possibly true.
[29]
However,
in our view that is in fact the one aspect of their version that is
the most improbable. It was clear that there had been
at least two
altercations between the two groups at the tavern, and even on the
appellants’ version, the quarrel was essentially
between them
and Mbasane. That all three of them would later pursue only Sigwili
and leave the other two appellants behind, is
highly improbable.
Their testiomony in this regard was, in our view, contrived and
palpably false. In that scenario it would have
been improbable that
Sigwili had stabbed the deceased. Their testimony to the effect that
they came across the deceased who declared
that he had “been
finished”, and simply ignored him and walked home, was
similarly improbable. It was highly unlikely
that Mbasane and Mngambi
would have left the deceased alone after he had been wounded. It had
not been contested that they were
the persons who had attempted to
get him to a hospital. Moreover, it was common cause that the
deceased was killed by a single
stab wound through the heart. That
injury would have caused him to collapse almost immediately after the
wound had been inflicted,
and on the state witnesses’
uncontested evidence he did in fact collapse immediately. It was
therefore improbable that the
appellants would have come across the
deceased before he had collapsed and while still being able to talk.
It is also unlikely
that if they had indeed encountered the deceased
in that state that they would not have witnessed the assault upon
him.
[30]
We
are accordingly of the view that the magistrate has correctly
rejected the appellant’s version as being not reasonably
possibly true and false. The appeal can therefore not succeed.
[31]
In
the result the appeal is dismissed.
________________________
J.E
SMITH
JUDGE
OF THE HIGH COURT
I
agree.
_____________________
Z
NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
Appearances
Counsel
for the Appellants
: Advocate Zilwa SC
Attorney
for the Appellants
:
Mdledle Incorporated
606 Old Mutual
Building
Durban
400
c/o
Mlindazwe and
Associates
18 Craiser Street
Mthatha
Tel: 079 862
8528
Counsel
for the Respondent
:
No appearance
Attorney
for the Respondent
:
Director of Public
Prosecutions
Broadcast House
94 Sission Street
Fortgale
Mthatha
Date
of Hearing
: 11 March 2016