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[2016] ZAECMHC 48
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Soyizwaphi v S (CA18/16) [2016] ZAECMHC 48 (16 September 2016)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISIION
:
MTHATHA
CASE NO. CA 18/16
In the matter between:
NDUMISO SOYIZWAPHI
Appellant
and
THE
STATE
Respondent
FULL BENCH APPEAL
JUDGMENT
GRIFFITHS, J.:
[1] The appellant in this matter was
convicted of three counts of murder by the Eastern Cape High Court,
Mthatha (Miller J), and
sentenced on 15 December 2009 to life
imprisonment on each count. Leave to appeal to this court against
both the convictions and
sentences was duly granted by Pakade J on 28
October 2015.
[2] The appellant was alleged to have
murdered all three of the deceased on or about 4 March 2007, at or
near Ngcobo. He pleaded
not guilty to all three counts and gave no
explanation as to the basis for such pleas. It was alleged in
the indictment,
and apparently became common cause, that the
deceased's ages were 2, 14 and 18.
[3] It was common cause that during the
evening of 4 March 2007, a Sunday, the three deceased were shot and
killed whilst in a shack
in which they alone resided. Their father,
one Howard Mhlanga ("Mhlanga"), lived in a separate shack a
short distance
away with his girlfriend, one Nosendikho Tyathula.
("Nosendikho"). The appellant resided in a nearby shack.
[4] The crime scene was attended by
members of the South African Police Service during the evening of 4
March 2007. In this regard,
inspector Yekotya testified that a number
of spent 9 mm cartridges were found and were recovered by the police
inside the shack
in which the deceased were shot and killed. As a
result of information received, and after securing the scene of
crime, he went
in search of the appellant whom he had been informed
worked as a security guard at a certain Sasol garage in Ngcobo. He
arrived
at such garage between the hours of 20H00 and 21H00 the same
night but, despite inquiries, was unable to find the appellant there.
[5] According to inspector Yekotya, he
continued his search for the appellant who was ultimately arrested on
15 March 2007 at approximately
06H00. Upon his arrest, the appellant
was found to be in possession of a 9 mm Norinco automatic pistol. It
is common cause that
the appellant was indeed the licensed owner of
such firearm.
[6] The state established, by way of
ballistic evidence, that the cartridge cases found in the deceaseds'
shack were indeed fired
from the same firearm which was recovered
from the appellant. This, the proximity of the appellant's shack to
that of the deceased
and his apparent failure to remain at the scene
after the deceased had been killed, constituted the circumstantial
evidence upon
which the state relied in its pursuit of a conviction
against him. The state also relied on a certain statement allegedly
made
by the appellant, the admissibility of which was contested.
After a trial within a trial, Miller J however found that such
statement
was inadmissible in those proceedings and it was
accordingly not taken into account in determining the appellant's
guilt.
[7] In response to the allegations of
the state the accused testified that during the afternoon of 4 March
2007 Nosendikho had approached
him requesting that he lend his
firearm to her for her to hold during the course of that night as a
form of protection. According
to his testimony, the reasons given by
Nosendikho were that her partner, Mhlanga, also a security guard, had
recently secured a
new job which took him further away from her and
he was thus accordingly not sufficiently available to provide
protection for her
as he might previously have been. The accused
further testified that he had previously requested her to lend him
the sum of R500
as he was in desperate financial straits and that
when Nosendikho requested the firearm, she further suggested that she
give him
the sum of R1000 and that he need only repay the sum of
R500. Thus, in effect, she proposed that she hire the firearm from
him
overnight for the sum of R500.
[8] The appellant testified further that
this proposal was acceptable to him and that he had duly handed the
firearm over to Nosendikho
during the course of the afternoon of 4
March 2007, whereafter he went to the Sasol garage in order to carry
out his duties as
a security guard from 18H00 to 06H00 the following
morning. Furthermore, according to him inspector Yekotya had at no
stage during
the course of that night attended at the Sasol garage in
search of him.
[9] Because of the fact that the
appellant had not earlier in the trial alerted the state to the fact
that his defence would be
that Nosendikho had been in possession of
the firearm during the crucial period when the deceased had been shot
therewith, Miller
J granted an application by the state to reopen its
case and to lead the evidence of Nosendikho in this regard.
Nosendikho denied
the evidence of the appellant stating that whilst
she and Mhlanga had seen the appellant cleaning his shoes during the
course of
that afternoon, they had not spoken with one another. She
had never requested the appellant to lend his firearm to her and,
indeed,
she would never have done so as she was not proficient in the
use of such a weapon. Furthermore, she testified that Mhlanga worked
a day shift on 4 March 2007 and had thus been at home during the
course of that evening. She therefore, in any event, had had no
need
of further security as testified to by the appellant.
[10] Miller J, correctly in my view,
found that in order to determine the guilt, or otherwise, of the
appellant, it was necessary
for him to determine which of the
appellant and Nosendikho was telling the truth. This was a question
of the credibility of these
witnesses. After a full analysis of their
evidence, Miller J concluded that he could safely reject the evidence
of the appellant
and that the evidence of Nosendikho was satisfactory
in every material respect and reliable. Based therefore on her
evidence, he
found that the accused had been untruthful in testifying
that he had given possession of the firearm to Nosendikho before the
deceased
had been killed and that he must accordingly have been in
possession thereof at the crucial time. As a matter of inference,
based
on the well-known dictum in
R v Blom
[1]
,
he concluded that the state had, on this evidence, established beyond
a reasonable doubt that the appellant was indeed guilty
of these
crimes.
[11] Mr. Mgcotyelwa, who appeared on
behalf of the appellant, has urged us to find that the court
a quo
was wrong in rejecting the evidence of the appellant. He argued that
the trial court ought to have found that the appellant's version
was,
at the very least, reasonably possibly true and that, on this basis,
he was entitled to his acquittal.
[12] It is opportune at this stage to
restate the trite principles governing the hearing of appeals against
the findings of fact.
These were succinctly set out by Jones J in the
matter of
S v Leve
[2]
as follows:
“
The fundamental rule to be applied by a court of
appeal is that, while the appellant is entitled to a rehearing,
because otherwise
the right of appeal becomes illusory, a court of
appeal is not at liberty to depart from the trial court’s
findings of fact
and credibility, unless they are vitiated by
irregularity, or unless an examination of the record of evidence
reveals that those
findings are patently wrong. The trial court’s
findings of fact and credibility are presumed to be correct, because
the trial
court, and not the court of appeal, has had the advantage
of seeing and hearing the witnesses, and is in the best position to
determine
where the truth lies. See the well known cases of
R
v Dhlumayo and Another
1948(2) SA 677 (A) at
705 and the passages which follow;
S v Hadebe
and others
1997 (2) SACR 641
(SCA) at 645;
and
S v Francis
1991
(1) SACR 198
(A) at 204c-f. These principles are no less
applicable in cases involving the application of a cautionary rule.
If the trial
judge does not misdirect himself on the facts or the law
in relation to the application of a cautionary rule, but, instead
demonstrably
subjects the evidence to careful scrutiny, a court of
appeal will not readily depart from his conclusions.”
[13] Furthermore, and of direct
application to this case, are the comments of the Schreiner JA in
R
v Dhlumayo
[3]
relating to the trial judge's advantage is in this regard:
"5)
The mere fact that the trial Judge has not commented on the demeanour
of the witnesses can hardly ever place the appeal
court in as good a
position as he was.
(6) Even in drawing inferences the trial Judge may be in
a better position than the appellate court, in that he may be more
able
to estimate what is probable or improbable in relation to the
particular people whom he has observed at the trial."
[14] Applying these principles to the
present matter, it is necessary for this court to consider whether or
not the findings as
to the relative credibility of the appellant and
Nosendikho are either vitiated by irregularity, or are patently
wrong. No question
of an irregularity has been raised by the
appellant and indeed in my perusal of the record I have not come
across any. It thus
behoves this court to consider whether or not
these findings of Miller J were patently incorrect.
[15] I have closely examined the
evidence of both the appellant and Nosendikho within the greater
context of all the relevant evidence
in this matter. In my view, it
certainly cannot be said that the trial judge was wrong in his
findings in this regard. The trial
judge found that the evidence of
the appellant was, in all the circumstances of this matter, so
patently improbable that it could
be rejected out of hand. He
furthermore found that the evidence of the witness Nosendikho was
satisfactory in every material respect
and that in his view she was a
satisfactory and reliable witness.
[16] With regard to the evidence of
Nosendikho, the trial court found that she "was in my view, a
satisfactory witness. She
answered all the questions put to her, in a
forthright manner, and was not at all evasive". Miller J further
stated that:
"
The
version given by Nosendikho was simple and concise and she was not in
any way swayed from it, by cross examination. The accused's
version
on the other hand, is in my opinion so highly improbable that it may
be rejected as being false."
[17] The trial court further reasoned
that the inference to be drawn from the accused's version was that it
must have been Nosendikho
or someone else at her behest who shot and
killed the deceased. The court found that it was most improbable that
Nosendikho would
have hired the firearm from the appellant had she
intended to use it to murder the three children. The reason for this
was that
the father of two of those children, Mhlanga, was her
live-in companion and he and the appellant were not only close
neighbours,
but were also friends. It was also found to be
inconceivable that Nosendikho would simply hire the firearm from the
appellant,
almost immediately thereafter shoot the three deceased and
then simply return the firearm to him the following morning outside
the door of the shack which Mhlanga, the father of two of the
children that she shot the previous evening, occupied. In the
view of
the trial court, "The risk of it being revealed that she hired
the gun shortly before the killings, would be so high
as to not even
contemplate doing it."
[18] The trial court also pointed out
that it would be most improbable, if the appellant's version were
correct, that he would not
have made a report to Mhlanga the
following morning after the shooting of his children to the effect
that his live-in partner,
Nosendikho, had been in possession of a
loaded firearm during the course of that night in somewhat unusual
circumstances. It being
common cause that the appellant and Mhlanga
were friends, one would have expected the appellant in the
circumstances to have made
such a report.
[19] The trial court also pointed to
certain contradictions in the evidence of the appellant, such as the
fact that he said he was
at his place of employment, namely the Sasol
garage, from 18H00 to 06H00 the following morning. According to
Inspector Yekotya,
he had, on the evening of the killing of the
deceased, repaired from the crime scene directly to the garage in
search of the appellant,
but had not found him. The court found
Inspector Yekotya to be a satisfactory witness and that his evidence
was truthful and reliable.
[20] In addition to the foregoing, in my
view there are certain other improbabilities in the evidence of the
appellant. It was Nosendikho's
uncontradicted evidence that Mhlanga
had worked a day shift on 4 March 2007 and had returned home early
that evening. She also
testified to the fact that her shebeen usually
closed at 18H00 on a Sunday and that she had not experienced any
serious trouble
in or about the shebeen. As against this background,
the appellant's evidence to the effect that Nosendikho required the
firearm
for this one particular night because Mhlanga was to be
working far away during the course of the night and that she needed
protection,
held no water at all. There was, in my view, no basis
whatsoever for Nosendikho to hire a firearm from the appellant in
these circumstances
and where, on her evidence, she had never used a
firearm and had no idea as to how to use it.
[21] Then there was the further evidence
elicited by the court from the appellant to the effect that when the
firearm was returned
to him by Nosendikho, it still had eight rounds
in it, being the same number of rounds it had when he handed it to
her. Once again,
on the probabilities it is most unlikely that a
person who possessed no proficiency at all in handling a firearm
would have been
capable of replacing the rounds which had been used
when the children were killed.
[22] In my view all these factors
cumulatively are a strong indication that the trial court's findings
are unassailable. I am of
the view that, taking all these matters
into account, it cannot be found that the findings of the trial court
were wrong, let alone
palpably wrong. In the circumstances, the
appeal against the convictions has to fail.
[23] Turning then to the question of
sentence, the court
a quo
found that:
1.
In view of the fact that the three minor children were murdered by
being shot whilst they were inside
their abode and the absence of an
explanation as to the circumstances surrounding these actions, the
only reasonable conclusion
that could be drawn is that the murders
were premeditated thus attracting a minimum sentence of life
imprisonment on each count,
subject to a finding that there existed
"substantial and compelling circumstances", in terms of the
provisions of the
Criminal Law Amendment Act
[4]
;
2.
That the seriousness of the crimes, their premeditation, the manner
in which they were executed and the
lack of remorse on the part of
the appellant all far outweighed any benefit the appellant might have
been accorded with regard
to his personal circumstances and that,
accordingly, no substantial and compelling circumstances existed in
this matter.
[24] Mr. Mgcotyelwa has argued that the
trial court ought to have found that the appellant's personal
circumstances, namely that
he is 54 years old, a first offender, an
employed family man with four minor children and that he spent
approximately 2 years awaiting
trial, should have cumulatively
constituted substantial and compelling circumstances for the purposes
of section 53 of the Act.
[25] In my view, there being no
misdirection on the part of the court
a quo
in its assessment
in this regard, there can be no argument whatsoever with its finding
that no substantial and compelling circumstances
existed. In my view,
furthermore, even if the provisions of Act 105 of 1997 had not been
in existence, the seriousness of this
crime involving as it did the
murder of defenceless children warranted the imposition of life
imprisonment. As stated by the DJP
presiding on this appeal during
the course of argument, to allow the appellant's personal
circumstances to outweigh the seriousness
of the crime in this regard
would amount to showing undue mercy to "a family man who murders
children".
[26] In these circumstances, I am of the
view that there is no basis whatsoever for interfering with the
sentence imposed by the
court a quo.
[27] Accordingly:
1.
The appeals against both the convictions and sentences are
dismissed;
2.
The convictions and
sentences imposed by the court are quo are confirmed.
R E GRIFFITHS
JUDGE OF THE HIGH COURT
NHLANGULELA, DJP
: I agree
DEPUTY JUDGE PRESIDENT OF THE HIGH
COURT
DAWOOD, J.
: I agree
JUDGE OF THE HIGH COURT
COUNSEL FOR APPELLANT
: Mr Mgcotyelwa
INSTRUCTED
BY
: Legal Aid Board
COUNSEL FOR RESPONDENT
: Mrs Trietsch
INSTRUCTED
BY
: Director of Public
Prosecutions
HEARD ON
:
29 JULY 2016
DELIVERED ON
: 16 AUGUST 2016
[1]
1939 A.D. 108
at 202 – 203
[2]
2011 (1) SACR 87
(ECG) at paragraph [8]
[3]
1948(2) SA 677 (A) at 705
[4]
No. 105 of 1997