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[2016] ZAKZPHC 118
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Mbatha v S (AR339/15) [2016] ZAKZPHC 118 (19 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR 339/15
In
the matter between:
NQABENI
MICHAEL
MBATHA APPELLANT
and
THE
STATE RESPONDENT
Coram
: Jappie JP, D Pillay et Poyo Dlwati JJ
Heard
: 29 July 2016
Delivered
: 19 August 2016
ORDER
On
appeal from the KwaZulu-Natal High Court, Dukuza North Western
Circuit, Lopes J sitting as a court of first instance:
Accordingly,
I propose the following order:
‘
The
appeal against conviction is upheld. The conviction of the appellant
is set aside and the appellant is acquitted of the charge
against
him’.
JUDGMENT
POYO
DLWATI J
[1]
The appellant together with two others, to whom I will refer to as
accused 2 and 3 respectively, were convicted of murder by
Lopes J
sitting with two assessors in the High Court sitting in Dukuza North
Western Circuit. He was sentenced to life imprisonment
on 31 October
2012, whilst his co-accused were sentenced to twenty years
imprisonment. The appellant’s application for leave
to appeal
was refused by the court
a quo
.
This appeal comes before us after leave to appeal was granted by the
Supreme Court of Appeal.
[2]
Two issues arise in this appeal. The first issue is whether the
court
a quo
erred in relying on the evidence of two accomplice witnesses, Thulani
Galaji Xulu (Xulu) and Bhekinkosi Thembinkosi Zondi (Zondi)
in
convicting the appellant. The second issue is whether the court
a quo
erred
in finding that the evidence of Zanele Kubheka (Kubheka) corroborated
the evidence of both Zulu and Zondi so far as the appellant
is
concerned.
[3]
To fully appreciate the appellant’s contentions in this appeal,
it is necessary to canvas the circumstances and evidence
leading to
the conviction of the appellant. Perhaps it is important at this
stage to record that Xulu had been convicted of the
same offence
during 2008 and was serving a sentence of thirty years imprisonment
at the time that he gave evidence. Zondi, on the
other hand was
warned by the court in terms of s 204 of the Criminal Procedure Act
51 of 1977 (the Act). It was the State’s
allegation that the
appellant was the mastermind behind the killing of Sabelo Andries
Mkhize (the deceased) on 6 December 2006
in Ladysmith. He, according
to the state, had hired the services of his two co-accused and Xulu
to carry
out
the
hit on the deceased. Zondi, at Xulu’s instance, became involved
as a transport provider to the killers. To prove its case
the state
relied mainly on the evidence of Xulu, to prove the conspiracy and on
the evidence of Zondi to prove the events that
happened after the
killing. It also sought to prove that the appellant had made various
payments to his co-accused, as well as
to Zondi and Xulu for the
killing of the deceased.
[4]
Xulu testified that the appellant’s two co-accused, Zama
Christopher Mthombeni (accused 2) and Mlungisi Muzi Mabhutana
Mvelase
(accused 3) were his friends. He knew the appellant as a principal at
Siphimfundo High School (‘
the
school
’). It was common cause
that the deceased was the deputy principal at the same school. He
testified that on 4 December 2006
he was on his way to Dundee
Magistrate’s Court in the company of accused 2 and accused 3.
Before they reached Dundee accused
2 received a call. After that
call, accused 2 told
Xulu
that the appellant
wanted to see
them in Ladysmith.
[5]
They proceeded to Ladysmith where they found the appellant waiting
for them in Illing Street. They got into the appellant’s
vehicle and went to a certain parking lot within Ladysmith. There the
appellant told them that he had in fact discussed the issue
for some
time with accused 2 and 3. He wanted the deceased hit on his behalf.
Xulu understood the appellant to mean that he wanted
the deceased
killed. After discussions amongst each other they agreed that they
were ready to perform the task. It was agreed that
it would be done
within days.
Xulu,
accused 2 and 3 thereafter left the appellant.
[6]
Later Xulu, accused 2 and 3 discussed the issue further. They foresaw
that they would require transport services to get them
to the area
where the deceased stayed. Xulu then phoned a friend of his who
stayed in Johannesburg,
this
being Zondi. Xulu initially
testified
that he explained the details of the task at hand to Zondi and it was
agreed that his services would be required on 6
December 2006. Indeed
his friend, Zondi, arrived at his home at dawn on 6 December 2006. He
briefed him of the details of the task
to be performed. They were
joined by accused 2 and 3 and attended to various errands. Later that
day they needed something to eat
and Zondi took them to Xulu’s
girlfriend’s house who resided at Maqanda. Xulu,
accused
2 and 3went inside the house whilst Zondi remained outside eating
peaches. After having had something to eat they proceeded
to the
Nazaretha area, which is where accused 3’s girlfriend’s
place is, as accused 3 needed to fetch ammunition for
his .38
firearm.
[7]
They thereafter went
to Uitval to look for the deceased. According to Xulu they went to
the deceased’s home but it was dark,
and this made them realise
that he was not at home. Accused 2 then phoned the appellant and
enquired where the deceased could be
found as he was not at home. The
appellant then directed accused 2 to the deceased’s
girlfriend’s home as a place where
he could be found. I must
mention at this stage that there are a lot of contradictions on this
issue between the evidence of Xulu,
his statement in terms of s 112
that he made when he pleaded guilty and Zondi’s evidence but I
will return to this later.
After the phone call to the appellant,
Xulu, Zondi and accused 2 and 3 proceeded to the deceased’s
girlfriend’s home
who also resided
in
the area.
[8]
When they arrived at that homestead, they realised that accused 2 and
3 were known in that homestead. It was therefore agreed
that only
Xulu would go into that homestead to check whether the deceased was
there. He went to that
homestead
and pretended to be buying a beer. After buying the beer, and as he
was leaving he saw that one of the male persons seated
there was the
deceased. As Xulu went back to where accused 2 and 3 were waiting, he
observed
the deceased standing up
from
where he was
seated. The deceased then walked to back of that house. Xulu then
went back towards the deceased whilst accused 3 jumped
over the fence
and approached the deceased. Accused 3 then shot the deceased as he
was facing the other way. About three shots
were fired at the
deceased. Thereafter they got into Zondi’s vehicle and drove
away. It was decided that they must go to
Johannesburg. On their way
they phoned the appellant and told him that they had finished the
job. They told him that they were
going to Johannesburg for a few
days, to which he replied, ‘phone me the next day’. They
proceeded to Johannesburg
where they stayed at Zondi’s home for
a few days.
[9]
Various
contradictions in Xulu”s evidence were pointed out to him
during cross-examination. For instance it transpired only
during
re-examination by the prosecutor that Xulu had previously pleaded not
guilty to the charge he faced before Van Zyl J in
Pietermaritzburg
during October 2008. In those proceedings a statement in terms of s
115 of the Act had been submitted on his behalf
where the basis of
his defence was outlined. In that statement Xulu had stated that
during the evening of the incident he had gone
to buy beers at a
shebeen and thereafter returned to his place of residence and did not
go anywhere else during that evening. This
obviously was in
contradiction of his s 112(2) statement which he made when he pleaded
guilty and later it contradicted with his
testimony during the trial.
Xulu maintained that his testimony in court was the
truth.
[10]
It also transpired during his cross examination that during the
October 2008 proceedings his then girlfriend Zanele Kubheka
had
testified that Xulu had told her that he (Xulu) had shot the deceased
as accused 3 could not do it as he was known in the area.
Instead
accused 3 stood guard as Xulu shot the deceased. Obviously in those
proceedings it was denied that he had told his girlfriend
that. This
further was contrary to his section 112(2) statement and his evidence
during the trial. He maintained that accused 3
was the one that shot
the deceased.
[11]
Furthermore, it was put to him that in his s 112(2) statement he had
stated that the appellant had told them that he would
pay them R60
000 yet in the trial he testified that they were going to be paid
R100 000. There were a lot of contradictions also
as to who was to
share in this R100 000 and how much each person would receive. It
became unclear as to whether it was ever discussed
how much each
person was to receive for the killing or whether it was a known
factor between them. It also remained unclear whether
Zondi was to
receive any share in this R100 000 because according to Xulu he was
going to receive R25 000 whilst Zondi denied that
he was going to
receive anything other than money for the use of his vehicle.
[12]
Furthermore, it was put to Xulu that in his s
112(2) statement he had stated that accused 3 had told him where the
deceased’s
girlfriend resided after they had not found the
deceased at his home. Yet, during his testimony Xulu testified that
when they did
not find the deceased at his home, accused 2 phoned the
appellant and he directed them to where they could find the deceased.
It
was suggested to him that he made this up as he wanted to
implicate the appellant. In this regard and in light of his s 112(2)
statement and the evidence of Zondi (which I will deal with later)
accused 2 could not have phoned the appellant in the presence
of Xulu
as according to Zondi accused 2 was always with him in the vehicle
whilst accused 3 and Xulu went to look for the deceased.
Xulu’s
evidence in this aspect cannot be reliable. This contravention
was also highlighted by the trial judge when he asked Xulu (page 50of
the record from line 5 – 13):
‘
which
version of how they got to the deceased’s girlfriend’s
house is correct and he said I do not have a response’.
[13]
Furthermore, there was also a contradiction between Xulu’s s
112(2) statement and his testimony about what happened after
the
killing of the deceased. In his s 112(2) statement Xulu had stated
that the appellant had told accused 3 that they must go
to
Johannesburg and that he would phone them the following day. Yet
during the trial Xulu testified that they decided, on their
own
accord, to go to Johannesburg and they phoned the appellant to advise
him of same. There is also a contradiction between Xulu
and Zondi
about this part of the evidence but I will deal with it in greater
detail when I deal with Zondi’s evidence, suffice
to mention
that according to Xulu, after the killing of the deceased they only
saw the appellant on 8 December 2006 and not on
the night of the
killing as testified to by Zondi. Ultimately it was denied that the
appellant had made any payments to him or
his mother for the killing
of the deceased but Xulu disputed this
.
[14]
On the other hand Zondi’s evidence was that he indeed received
a call from Xulu requiring them to meet. Xulu, however,
did not tell
him during the telephone call or on his arrival in Ladysmith as to
why he required his services. They instead drank
a lot of alcohol,
ate and drove around Uitval in the company of accused 2 and 3. He
confirmed that they went to Xulu’s girlfriend’s
home but
he did not go inside as he was eating peaches in his vehicle.
Thereafter they continued to drive around and Xulu and accused
3 kept
leaving the vehicle and coming back saying they could not find the
person. He (Zondi) did not know who they were looking
for and why. At
all times during that evening Zondi remained in the vehicle with
accused 2.
[15]
At some stage when accused 3 and Xulu had left the vehicle to go and
look for this person again, Zondi heard about two gunshots.
He
enquired from accused 2 if he had heard that and what it could
possibly be. Accused 2 told him that they had been hired to kill
a
person but they were afraid of telling Zondi this as he might not
have agreed to help them with transport. After hearing this
Zondi was
shocked and was afraid of the accused 2 and 3 and Xulu. After
sometime Xulu and accused 3 returned and told them that
they had done
the job. They told them that they must go and tell the appellant that
they had done the job. The four of them then
proceeded to KwaGodi
where the appellant resided. At that stage Zondi told the other three
that he was drunk and tired and was
not able to continue to drive.
Xulu then drove the vehicle. On arrival at the appellant’s
home, they did not find him there
but after a telephone call was made
they waited for him. Zondi did not know the appellant.
[16]
The appellant
eventually arrived and after they introduced him (Zondi) to the
appellant, thereafter a discussion was held. The appellant
asked them
as to who had done the job and Xulu told him it was accused 3. The
appellant then served them food. A further discussion
was held about
the compensation for what they had done. The appellant was leading
the discussion and expressed appreciation for
the work that they had
done. An amount of R60 000 was mentioned initially as the payment but
the appellant told them he would make
it R100 000 as they had done a
good job. Zondi mentioned that at this stage he was no longer
observing as to who was talking but
was merely listening to the
conversation as he was drunk, tired and shocked. The appellant told
them that he would pay them in
instalments of 20s but mentioned three
twenties.
[17]
The appellant further
told them that he would have finished the payment by April 2007. An
amount of R500 or R600 was also produced
by the appellant for petrol
for Zondi’s car. Accused 2 also requested for some money so
that they can perform a cleansing
ritual for themselves. At that
stage the appellant took out a cheque book and made out a cheque for
R1 000 or R1 500. Zondi could
not remember the exact amount because
he was drunk. A cheque was
made
into
Zondi’s name as it was established that neither Xulu nor
accused 2 or 3had bank accounts. Zondi testified that when the
cheque
had been written out, he took it. They left the appellant’s
home and they all proceeded to Johannesburg. On arrival
in
Johannesburg they proceeded to the bank and waited until it opened
and he deposited the cheque. After receiving the money he
gave it all
to Xulu, accused 2 and 3.
[18]
At some other time
accused 2 requested Zondi to give him his bank account details so
that the appellant could deposit more money
for accused 3 into
Zondi’s bank account. Zondi gave accused 2 the bank account
number and the appellant deposited about R1 000
into the account
although Zondi could not clearly recall the amount. Zondi did not
dispute the fact that the amount that was deposited
into his account
by the appellant on 29 January 2007 was R2 500. Zondi testified that
they came back from Johannesburg to Ladysmith
on 8 December 2006 for
accused 2’s mother’s funeral and also for his own
relative’s funeral. Zondi did not mention
anything about a
meeting with the appellant on 8 December 2006 and this contradicts
Xulu’s evidence.
[19]
Under cross
examination he disputed that Xulu had told him on his arrival at
Uitval the purpose for which they required his services.
This is
obviously in stark contrast with Xulu’s testimony about Zondi’s
involvement in the whole incident, as Xulu
painted a picture that
Zondi knew on his arrival the reason why his services were required
and he participated freely. Zondi always
emphasised that he was drunk
and tired throughout that evening. It was also brought to Zondi’s
attention that his evidence
about what happened after the killing of
the deceased was in contradiction to that of Xulu’s evidence.
He, however, was adamant
that they went to the appellant’s home
that night to tell him that they had done the job and they sought
payment.
[20]
Zondi also
contradicted himself against the objective evidence of the cheque
book and the bank statement that the appellant had
given him a cheque
for accused 2 and 3 and Xulu on the night of the killing, as he was
the only one with a bank account. After
contradicting himself on
whether he deposited the cheque or he had cashed it, he was forced to
concede that no cheque was given
to him during that night and no
cheque was deposited into his bank account on 7 December 2006. This
was pointed out to him that
the only deposit made by the appellant
according to his bank statement was on 8 December 2006. This leaves a
question as to whether
there was in fact a meeting between them and
the appellant on 6 December 2006 after the deceased’s killing.
Whilst he had
initially testified in his evidence-in-chief that he
had taken the cheque from the appellant on the evening in question,
he later
changed this under cross examination and testified that he
was not sure as to who had taken it. It was
suggested
to him that he was trying to distance himself from the commission of
the offence and he disputed this.
[21]
It
was put to him
that the appellant did not dispute that he had made two payments into
his account. What was in dispute was what those
payments were for. It
was put to him that the payments by the appellant to his bank account
were on the instructions of accused
2 who had rendered services at
the appellant’s school and had wanted money whilst in
Johannesburg but did not have a bank
account, hence the deposits to
him but he disputed this and was adamant that the payments were for
the killing of the deceased.
That in a nutshell was the evidence that
linked the appellant to the killing of deceased.
[22]
The appellant on the other hand denied any involvement in the killing
of
the deceased. He denied that he
had meetings with Xulu, Zondi, accused 2 and 3 where the killing of
the deceased was discussed.
He maintained his version as
put
to various witnesses especially about the payments to Zondi and one
Nondaba. He testified that the payment to Nondaba was not
a payment
to Zondi as reflected in his diary but was a payment to one old man
in his village who sold goats. One therefore has
to take Zondi and
Xulu’s evidence and analyse it to check whether it was clear
and satisfactory in all material respects.
Thereafter that
evidence must be weighed against the probabilities and
improbabilities, and establish whether the appellant’s
explanation is reasonably possibly true. However I will deal with
this much later in the judgment.
[23]
I now consider the evidence linking the appellant to the plot or
conspiracy to kill the deceased; thereafter I will look at
the events
of the evening of 6 December 2006 and to the events that happened
thereafter and finally to the payments.
[24]
Firstly the evidence linking the appellant to the whole offence is
taken from Xulu’s and Zondi’s evidence, albeit
at
different times. Xulu is a self-confessed killer who is currently
serving 30 years imprisonment for the same offence. His evidence
therefore is tantamount to that of an accomplice and must be treated
with caution. He is also a single witness in various aspects
of his
evidence where he implicates the appellant. The same applies to Zondi
as he was warned in terms of s 204 of the Act. It
is trite therefore
that one of the safeguards in the exercise of caution is
corroboration.
[1]
Zondi
corroborated Xulu’s evidence about certain events that occurred
on 6 December 2016. I must therefore find corroboration
for Xulu’s
evidence about the plot to kill and the killing of the deceased.
Alternatively where no such corroboration is
found, Xulu’s
evidence must be clear and satisfactory in all material respects in
order to have the appellant convicted of
the offence.
[2]
[25]
There is no corroboration of Xulu’s evidence about the meeting
they held with the appellant on 4 December 2006. In this
regard he
initially testified that accused 2 had received a telephone call from
the appellant advising him that he would like to
see them in
Ladysmith. Under cross examination he initially testified that the
appellant had told accused 2 that he wants to see
them for the Mkhize
(deceased) matter. Quickly he changed this and said he did not know
what the meeting was going to be about.
The trial judge had to
intervene and asked him which was the correct version and only then
did he say he knew that it was about
the Mkhize’s matter. He
initially testified that accused 3 was not present on 4 December 2006
but later changed and said
he was present. Both accused 2 and 3
denied that they had a meeting with the appellant on 4 December
2006. There was no other
evidence to corroborate either the
call by the appellant to accused 2or the meeting between Xulu, the
appellant, accused 2 and
3. As Xulu’s evidence is riddled with
contradictions in this regard it falls to be rejected as no one knows
where the truth
lies
[26]
I turn now to
consider the evidence about the events of 6 December 2006. Xulu
testified that he told Zondi on his arrival at Uitval
as to why his
services were required on that day. Zondi flatly denied this. Either
Zondi is distancing himself from the offence
or Xulu is lying but
this does not take the matter any further for the appellant but
affects Xulu and Zondi’s credibility.
Xulu further testified
that after they did not find the deceased at his home, accused 2
phoned the appellant to enquire where they
could find the deceased.
However, this is contradicted by his own s 112(2) statement where he
stated that accused 3 knew where
they would find the deceased after
they did not find him at his home. In any event Zondi had testified
that accused 2 was always
with him in his car when Xulu and accused 3
went to look for the deceased. Accused 2 therefore could not have
phoned the appellant
in the presence of Xulu. Furthermore there is no
corroboration for the call having taken place. This evidence
purporting to link
the appellant to those events ought to be
rejected.
[27]
The further
contradiction is about the actual person who shot the deceased.
Whilst this does not take the appellant’s case
any further, it,
however, has an impact on Xulu’s credibility and reliability.
Xulu denied that he was the one who pulled
the trigger and stated
that it was accused 3 who shot the deceased. Kubheka, whose evidence
was accepted as reliable by the trial
court, and I have no criticisms
levelled at her evidence, she testified that Xulu had told her that
it was him (Xulu) who had shot
the deceased. The explanation about
why Xulu was the one who pulled the trigger was more probable and is
consistent with his earlier
evidence that it was agreed that he would
go inside the homestead where the deceased was as accused 2 and 3
were known in that
homestead.
[28]
Furthermore the
description he gave to his ex-girlfriend about how the deceased was
shot was consistent with the deceased’s
injuries as detailed in
the post mortem report admitted into evidence as exhibit ‘J’.
Furthermore, accused 3 denied
any involvement or whatsoever of the
killing of the deceased and again there is no corroboration of Xulu’s
evidence in this
regard. I am therefore of the view that Xulu again
lied about this aspect of his evidence and Kubheka’s evidence
must be
accepted as the truth.
[29]
I now turn to
consider the events that took place after the killing of the
deceased. It was Xulu’s evidence that after the
killing they
drove to Johannesburg and telephoned the appellant and advised him
that the job had been done. Yet according to Zondi,
after the killing
they went to the appellant’s home in KwaGodi where they had a
meeting with him. The appellant on the other
hand denied that he had
received a call from Xulu advising him that the job had been done. He
also denied that he had a meeting
with Zondi, Xulu and the two other
accused at his home during the evening of 6 December 2006. On the
State’s own version
there are contradictions in this regard.
There is no objective or reliable evidence that indeed the meeting
did take place. In
my view the appellant must get the benefit of the
doubt in this regard.
[30]
On the other hand,
the appellant’s version on this aspect is that he could not
have met with them because there were local
elections in the area and
as a councillor he had to attend to those proceedings. Zondi, it
should be remembered, kept emphasising
that on the night in question
he was drunk, shocked and tired. His evidence on its own cannot be
reliable. Again the State’s
evidence in this regard has not
been proven beyond a reasonable doubt that there in fact was a
meeting. In any event Xulu testified
that there was no meeting on the
6 December 2006. Even his evidence that he merely had called the
appellant to advise him that
they had done the job and that they were
going to Johannesburg was not corroborated. There is therefore no
reliable evidence that
the appellant met with the accused, Xulu and
Zondi on 6 December 2006.
[31]
The final issue is
the payment that the appellant allegedly made as compensation to
various people for the killing of the deceased.
Mr Khathi, on behalf
of the state conceded during the trial that he did not have evidence
with regard to various entries in exhibit
‘K’ save for
item 4. That entry was a payment allegedly made to Nondaba in the sum
of R500.00. A note to this effect
was made in the appellant’s
diary which was handed in during the trial and was marked exhibit
‘K’. Zondi testified
that this was cash handed to him by
the appellant during the evening of 6 December 2006.
[32]
The appellant on the other hand testified that he had bought a goat
from an old man in his area who they usually referred to
as Nondaba.
In this regard the evidence of Elphus Mpini Zondi corroborated the
evidence of the appellant that indeed the appellant
had bought a goat
from him at some stage. He confirmed that at times he sold goats even
though that was not an on-going business
so to say. He also confirmed
that his clan name is Nondaba and other people refer to him as
Mancinza. On this aspect the court
a quo
erred in finding that
Mr Zondi had conceded under cross-examination that his clan’s
name was not Nondaba. The record on page
415 from line 3 bears me out
in this regard. He was asked the following question by Mr Khathi:
‘
You
are who the people referred to as Mancinza?
’
His
response was:
‘
that
is also correct. The Zondi’s, the other clan name is also
Mancinza’.
[33]
There is therefore no reason why the appellant’s version,
corroborated by Mr Zondi could not be accepted by the trial
court in
this regard. In my view his version in this regard is reasonably
possibly true. The other payments were those for the
sum of R1 500
and R2 500 into Zondi’s account on 8 December 2006 and on
29 January 2007 respectively. According to Zondi
these were payments
for the killing of the deceased received on behalf of accused 2, 3
and Xulu from the appellant. However the
appellant’s version in
this regard was that indeed the payments were for accused 3. During
May to November 2006 accused 3
had been working at the school as a
security guard but had not been paid for that. It was then agreed
between the appellant and
Mr Thamsanqa Ivo Ngubane, who was the
chairperson of the school governing body at the time, that accused 3
be given some money
as a token of appreciation for his services. It
was for this reason that the sum of R2 500 was paid to him.
[34]
With regards to the amount of R1 500 the appellant testified
that Accused 3, who is also his brother-in-law, had called
him whilst
he (accused 3) was in Johannesburg. He requested the appellant to
lend him some money as he wanted to return to KwaZulu-Natal.
Because
he did not have a bank account, he gave him Zondi’s banking
details and that is how the money ended up in Zondi’s
account.
Accused 3 corroborated the appellant’s version in this regard.
In weighing this evidence against Zondi’s,
it cannot be said
that the appellant’s explanation is not reasonably possibly
true. In my view therefor, the appellant ought
to have received the
benefit of the doubt and be acquitted.
[35]
Having taken all the evidence that implicates the appellant in the
commission of the offence, weighing it against the probabilities
and
the improbabilities; I am of the view that the learned trial judge
erred in relying on the evidence of Xulu and Zondi in convicting
the
appellant. Xulu’s evidence was of such poor quality that it can
never be held to have been clear and satisfactory in
all material
respects. Where it ought to have been corroborated by Zondi, there
were material and irreconcilable contradictions
in their evidence.
Xulu’s evidence was not corroborated at all where it implicated
the appellant. In this regard the learned
judge erred in finding that
Khubeka’s evidence corroborated Xulu’s evidence. This was
not in relation to the involvement
of the appellant but related to
accused 2 and 3’s involvement.
[36]
The same applies to Zondi. He mentioned on various occasions that
during that evening he was drunk and tired as if to say ‘do
not
rely much on what I’m saying’. As alluded to earlier, his
evidence contradicted Xulu’s evidence in all material
respects.
He tried to distance himself from being involved in the commission of
the crime, yet Xulu testified that he informed
Zondi about it in the
beginning, on his arrival at Uitval, i.e. the purpose for which his
services were required. He was a poor
witness who contradicted his
evidence-in-chief during cross-examination. Zondi is also not a
reliable witness.
[37]
What is left is whether the appellant’s version with regards to
the payments is reasonably possibly true. In this regard
the learned
trial judge misdirected himself when he found that the appellant’s
defence was not credible. All that was required
was for him to give
an explanation which is reasonably possibly true. As held in
S
v Shackell
2001
(2) SACR 185
SCA at para 30 ‘
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’.
In
my view the appellant’s explanation cannot be held to be false
and he ought to have received the benefit of doubt and be
acquitted.
Order
[38]
Accordingly I propose the following:
‘
The
appeal against conviction and sentence is upheld. The conviction of
the appellant is set aside and the appellant is acquitted
of the
charge against him’.
__________________
POYO
DLWATI J
I
agree
__________________
__________________
JAPPIE
JP
D PILLAY J
Date
of Hearing
: 29 July 2016
Date
of Judgment
: 19
July 2016
Counsel
for Appellant
: Ms D Barnard
Instructed
by
: Christopher, Wilton & Tathan Attorneys
Counsel
for Respondent : Mr
D Naidoo
Instructed
by
: The Director of Public Prosecutions, PMB
[1]
See
R
v J
1966 (1) SA 88
(SR);
S
v Eyssen
2009 (1) SACR 406
(SCA) para 12;
S
v Dos Santos and another
2010 (2) SACR 382
(SCA);
S
v Ndawonde
2013 (2) SACR 192
(KZD) para 8;
S
v Prinsloo and others
2016 (2) SACR 25
(SCA) para 169.
[2]
See
s 208
of the
Criminal Procedure Act 51 of 1977
; see also
S
v Sauls and others
1981
(3) SA 172
(A);
S
v Ndawonde
supra para 4; and
S
v Prinsloo
supra para 169.