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2016
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[2016] ZAGPPHC 865
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Mngomezulu and Others v S (A 421/2016) [2016] ZAGPPHC 865 (21 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
CASE
NO: A 421/2016
DATE:
21 SEPTEMBER 2016
In
the matter between:
LINDIWE
MNGOMEZULU
..................................................................................
First
Appellant
LUCKY
MNGOMEZULU
...............................................................................
Second
Appellant
THEMBA
MAGAGULA
.....................................................................................
Third
Appellant
And
THE
STATE
.............................................................................................................
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1] The appellants
were convicted in the Tonga regional court on a charge of murder, two
counts of kidnapping and two counts of
assault with the intent to do
grievous bodily harm.
[2] The appellants
were sentenced to an effective period of 20 years imprisonment.
[3] Although leave to
appeal was granted in respect of both conviction and sentence, the
appellants did not persist with the appeal
against sentence.
CONVICTION
[4] The facts
pertaining to the events that led to the conviction of the three
appellants are largely common cause.
[5] The first
appellant had a break in and theft of certain items at her house. She
was desperate to locate the culprits and on
21 February 2011. It came
to her attention that one of the culprits was socialising at a tavern
in Driekoppies.
[6] Instead of
alerting the police of the information she received, she rounded up a
bunch of boys, including members of the community
policing forum to
accost the suspected thieves. She drove with the second appellant in
a double cap bakkie to the tavern. It was
approximately 20:30 in the
evening.
[7] Present at the
tavern was Nkululeko Shabangu (“the deceased”), Vusimuzi
Lewis Shabangu (“Shabangu”)
and Jabulani Khoza (“Khoza”).
[8] Whilst seated at
the tavern they were accosted by a group of boys. According to the
evidence of Shabangu, the deceased was hit
with a bottle on his head
and thereafter both the deceased and Khoza succeeded in escaping by
jumping over a fence wall.
[9] Shabangu could not
escape and was thrown to the ground. Whilst lying on the ground he
was assaulted with a knobkerrie and kicked.
Fortunately, the owner of
the tavern came to his rescue and locked him in the tavern in order
to save him from his attackers. He
could only recognise the first
appellant as being amongst the group that were attacking him. He
testified that the first appellant
was merely a spectator and that
she did not participate in the assault. As will appear infra, his
version on this aspect differs
from the evidence of Khoza.
[10]Khoza testified
that he was with the deceased and Shabangu when the first and second
appellants arrived at the tavern armed
with knobkierries. Whilst they
were still seated the first and second appellants started throwing
knobkierries at them. The two
appellants were in the company of
approximately 15 other people.
[11]Khoza, shortly
thereafter, changed his version and testified that the second and
third appellants threw the knobkierries at
them, whilst the first
appellant was in possession of a sjambok. He jumped over the fence
wall, but was caught by the group and
taken to a bakkie. The second
appellant was the driver of the bakkie. After a while the deceased
was also brought to the bakkie.
[12]Save for denying
their involvement in the assaults and stating that they remained
behind in the bakkie, the aforesaid evidence
was not disputed by the
first and second appellants.
[13]According to
Khoza, the first appellant was the one giving instructions and she
told the second appellant to drive to her house
in Gumslusha.
[14]The first and
second appellants confirmed that they took the deceased and Khoza to
the first appellant’s house, but deny
any further involvement
thereafter. According to them the group of people left with the
deceased and Khoza and they only learned
the next day of the tragic
events that unfolded during the night.
[15]According to
Khoza, the first appellant instructed a certain male person to get
more knobkierries from her garage. Khoza and
the deceased were
ordered to walk to Nyati dam and whilst walking they were assaulted.
They were assaulted by the second and third
appellants and a group of
people. Although the first appellant initially only ordered the group
to assault them, she also participated
in the assault at a later
stage.
[16]Upon their arrival
at Nyati dam they were made to lie on the ground and were further
assaulted. At this stage the first appellant
assaulted them with a
sambok. Thereafter they were carried to a place next to Patel
Hardware and the second appellant was ordered
to fetch a vehicle. The
second appellant arrived in a green Toyota Corolla and both the
deceased and Shabangu were thrown into
the boot of the vehicle.
[17]Whilst on their
way to Mzinti trust, Khoza managed to jump out of the boot .of the
vehicle and took refuge under a tree. He
heard the vehicle stop. It
was a distance of approximately 100 metres from him and although he
could not see what was happening,
he could hear people talking.
[18]He was not sure if
the first appellant was present, but he could recognise the voices of
the second and third appellants. The
deceased’s body was
dropped and the vehicle drove away. Khoza was rescued by the driver
of a tractor and he directed the
driver to the place where the
deceased’s body was dumped. The police was called to the scene.
[19]Khoza knew the
first and second appellants well, but saw the third appellant for the
first time on the day of the incident.
Although he saw the third
appellant for the first time on the day of the incident, he described
the third appellant to the police
and directed them to Langloop where
the third appellant was apparently residing.
[20]During
cross-examination, some discrepancies between his evidence and the
version contained in a statement made by him directly
after his
ordeal were pointed out to him. Khoza answered that he was still
traumatised by the vicious assault and might have made
mistakes on
certain aspects.
[21]The appellants
listed several contradictions between the evidence of the two state
witnesses and the discrepancies between their
viva voce evidence and
the version contained in their statements. The appellants, quite
correctly, pointed out that the court a
quo did not deal with these
contradictions and discrepancies in its judgment.
[22]The question,
however, remains whether the court a quo erred in accepting their
evidence. Having regard to the prevailing circumstances
during the
commissioning of the crime, I am of the view that the contradictions
and discrepancies are to be expected. One should
also bear in mind
that the two state witnesses perceived the unfolding events from the
vantage point of their own situation at
the time. The fact that
Khoza’s statement was taken directly after he was viciously
assaulted, also explains the discrepancies.
[23]Both state
witnesses did not exaggerate the participation of the first
appellant. Shabangu testified that she did not participate
in the
assault in the Tavern. Khoza only implicated her in the assault at
the dam. Khoza candidly stated that he does not know
whether the
first appellant was on the scene when the deceased’s body was
dumped. The evidence of Shabangu and Khoza as a
whole has a ring of
truth and the court a quo correctly relied on their evidence.
[24]On the first and
second appellants’ own version, they were part of the group
that forcefully took the deceased and Khoza
from the tavern. Their
version that they were mere innocent bystanders and did not actively
participate in the assault of the deceased
and Khoza is highly
improbable. Why would a group of people out of their own volition
assault two alleged perpetrators who did
nothing to them? It is
indeed only the first appellant who had any interest in the assault
of the two suspected perpetrators. Her
goods were stolen and she
wanted the goods back. When she proceeded to the tavern with the
second appellant, the intention was
clear, to get her goods back at
all costs and to punish the suspected thieves for the injustice that
was done to her.
[25]Save for the
evidence of the state witnesses, the state also relied on warning
statements made by the three appellants. The
statements of the first
and second appellants accord with their evidence in court. The fact
that the first and second appellants
all along denied any involvement
in the commissioning of the crimes is taken into account, but does
not assist them in evaluating
the totality of the evidence presented
by the State.
[26]The statements of
the first and second appellants implicated the third appellant in the
commissioning of the crimes. I agree
with Mr R Kriel, counsel for the
appellants, that this evidence ought not to be used against the third
appellant.
[27]The third
appellant, however, also made a warning statement. The state proved
that the statement was obtained voluntarily and
the statement was
admitted into evidence. The third appellant denied that he made the
statement. The evidence of the police officer
who obtained the
statement, constable Maphosa, was reliable in all material respects
and the court a quo correctly relied on the
contents of the
statement.
[28]The only relevance
of the statement is the fact that the third appellant placed himself
at the scene of the crime. This admission
corroborate the evidence of
Khoza that the third appellant was at all relevant times one of the
perpetrators of the crime.
[29]The third
appellant relied on an alibi and testified he was living with his
wife, Faith Nkosi, in Matsulu at the time. His wife
testified and
confirmed his version. This evidence is in direct contradiction to
the version contained in his warning statement
and is rejected as
being false.
[30]Insofar as the
different charges are concerned, the State relied on the doctrine of
common purpose in order to proof its case.
[31]Having regard to
the evidence in its totality, I am satisfied that the State did prove
its case beyond reasonable doubt. Consequently,
the court a quo
correctly convicted the appellants on all the charges. And the appeal
against conviction must fail.
ORDER
In the premises, I
suggest the following order:
The appeal against
conviction is dismissed.
JANSE VAN
NIEUWENHUIZEN J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
I agree and it is
so ordered.
SETHOLE J
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Appearances:
Counsel
for the Appellant Advocate R Kriel
Instructed
by Mr Lucky Mngomezulu
Counsel
for the state Advocate Kotze
Instructed
by The State