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[2016] ZAGPPHC 984
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Ngwenya v S (A791/15) [2016] ZAGPPHC 984 (1 December 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
CASE
NO: A791/15
01/12/2016
Not
Reportable
Not
of interest to other judges
Revised
In
the matter between:
DOCTOR
NGWENYA
Appellant
and
THE
STATE
Respondent
Date
heard: 28 November 2016
Date
delivered: 01 December 2016
JUDGMENT
TSHABALALA,
AJ
1.
This is an appeal by the Appellant against conviction and sentence
handed down in the regional court in Benoni, Gauteng. The
Appellant
was granted leave to appeal by the Magistrate.
2.
The Appellant was convicted of robbery with aggravating circumstances
and murder on 3 September 2013. The victim of the aforesaid
crimes
was Petros Solomon Buda, hereinafter referred to as "the
deceased".
3.
The appellant was sentenced to 15 years imprisonment in respect of
count 1, the offence of robbery. He was sentenced to 20 years
imprisonment in respect of count 2, the offence of murder, 5 years of
the sentence in count 1 was ordered to run concurrently with
the
sentence in count 2.
4.
The court a
quo
found that substantial and compelling
circumstances were not present in this matter. The magistrate
therefore imposed a just sentence
in terms of the law in the
circumstances.
5.
The State called seven witnesses. The deceased's brother, Elvis
Joseph Buda testified first. Two police officers namely Kitchener
T
Mabelo, the arresting officer, and Constable Cynthia Khubeka, the
officer who was with Mabelo that morning when he effected the
arrest.
Peter Mathebula, another police officer testified. They were followed
by Johannes Makgathla, also a police officer. James
Mboya, also a
police officer working for the South African Police Service
testified. The last witness to testify was Anthony Edward
Jones, a
police officer attached to the Criminal Record Centre.
6.
The deceased's brother, Elvis Buda testified that the deceased
dropped him at his place on 6 September 2008 at approximately
21h00.
The essence of Mr Buda's evidence is that he reported the deceased
missing. The police informed him that a person fitting
the
description of his brother was found on Sunday morning. The police
also informed him that his brother's vehicle was also recovered.
Mr
Buda also testified that the deceased hated taverns and that he did
not visit taverns. Mr Buda also testified that a man who
identified
himself as Thembinkosi answered the deceased's mobile phone when
Nokuthila, Buda's sister called the telephone number.
7.
Warrant Officer Mabelo testified that he spotted the accused with a
black male walking next to a Volkswagen motor vehicle at
approximately 03h30 in the morning of 7 September 2008. Mabelo was
accompanied by Constable Khubeka. Mabelo enquired where the
Appellant
and the other man, Vusi Mabena were on the way to, the
Appellant informed him that they were on their way to procure
petrol for the Volkswagen vehicle as the car had run out of petrol.
8.
Mabelo searched the Appellant and Mabena, he found a .38 special
revolver on the waist of the Appellant. Mabelo arrested them
for the
possession of an unlicensed firearm.
9.
Mabelo realised that the Appellant's sweater and sneakers had
blood on them. He enquired from the Appellant about the presence of
the blood, the Appellant informed Mabelo that the blood was the
result of a nose bleed. Mabelo also noticed blood on the body of
the
vehicle, when he asked the Appellant for an explanation, the
Appellant informed Mabelo that he touched the vehicle when he
was
bleeding from his nose. Mabelo accepted the explanation given by the
Appellant relating to the presence of blood on his person
and on the
vehicle.
10.
The vehicle was left on the street because the police had no
right to move it. Mabelo testified that they only saw blood outside
but not inside the vehicle. The Appellant and Mabena appeared to have
consumed alcohol.
11.
Constable Khubeka confirmed the better part of Mabelo's
evidence. There were few but important differences, namely that there
were
traces of blood on the back seat of the vehicle, and at the back
of the vehicle, that is outside. Both Mabelo and Khubeka testified
that there were no car keys on the ignition of the vehicle.
12.
Inspector Peter Mathebula testified that he went to visit the
Appellant at Modderbee to fetch the Appellant's sweater because it
had blood on it. He noticed that the accused's sneakers had blood on
them, he confiscated the sneakers. The Appellant informed
him that he
gave the sweater to his mother. He booked the sneakers and jersey as
evidence.
13.
Malafeta Johannes Mogatla testified that he sent the sneakers
and sweater to the forensic science laboratory for DNA testing. A
sample of blood was drawn from the accused and sent to the forensic
laboratory.
14.
James Mboya received a firearm from Warrant Officer Mgide and
sent it to the forensic laboratory in Pretoria.
15.
Anthony Edward Jones took photographs of a Volkswagen Golf
vehicle with licence disc [...] MP. He also took photographs of blood
in
the vehicle, on the side skirting, a
panel below the driver's door and the roof pillar to the driver's
side of the vehicle. He lifted
each drop of blood with a separate
swab. He later sent the swabs to the forensic laboratory in Pretoria.
16.
The
post mortem
report was handed in by agreement. The
Appellant admitted the contents of the report in terms of section 220
of the Criminal Procedure
Act. It was read to the record as evidence.
17.
The following injuries, amongst others, were noted in the
report:
"Multiple
fractured ribs, multiple abrasions and bruises over face, chest,
upper limbs and abdomen, extensive abrasions posterior
chest, head
and neck, scalp-thoracic cage and diaphragm
-
multiple
fractured ribs. The cause of death was determined to be multiple
injuries".
18.
Warrant Officer Haitebatso Sedibe's testimony was of a
forensic nature.
She made the following
findings in her analysis of blood samples and testified that "the
DNA results that were found on the
deceased was the same as the DNA
of the blood that was found on the motor vehicle and the same DNA or
the blood that was found
on the jersey and takkies of the accused is
the same as of the deceased". That was the State's case.
19.
The Appellant was the first witness for the defence. He
testified that he was drinking with two friends at Shamase Tavern,
namely
Nhlanhla Ngwenya, a girl and Nkosinathi Sibanyoni, a boy.
20.
According to Appellant, he and his two friends were sitting at
a corner table. There was a fight inside the tavern, someone fell
on
top of him, the Appellant stood up and pushed the unknown person.
They decided to leave the tavern. The Appellant accompanied
his
friends home. He was arrested on his way home without Nhlanhla and
Nkosinathi.
21.
The Appellant testified that he was alone when he was
arrested. He was in possession of two beers when he was arrested. He
found
another man inside the police vehicle.
22.
He denied that he was found in possession of a firearm, and
that he was not far from the deceased's motor vehicle. He also denied
that they were on the way to procure petrol for the motor vehicle.
23.
Appellant denied in his testimony that blood was found on his
sweater.
He could not recall the order
of their sitting. He did not recall the details of the fight, or how
the person fell on him. He could
not remember whether the person that
he pushed was injured as not as the incident took place in 2008. He
denied that his sweater
had blood on it. He also denied that he
killed the deceased or that he was part of the people who killed the
deceased.
24.
The Court went to inspect the various locations that witnesses
had testified about. The first port of call was Shamas Tavern. The
accused showed the Court where he was seated. Of importance is that
the tables had been changed from movable round tables to fixed
tables, during 2008 patrons could easily put their feet under the
table.
25.
The Court proceeded to the scene where the body was found. The
distance was approximately 2.8 kilometres from the tavern. The place
had changed as compared to photo 8 in Exhibit N. The Court proceeded
to where the VW Golf motor vehicle was found, it was approximately
600 metres from Shamas Tavern.
26.
The Court also visited Nhlanhla's place in Simunye Street. The Court
estimated the distance from Nhlanhla's place to the Appellant's
place
to be approximately 100 - 200 metres.
27.
Warrant Officer Mabelo had testified that there was no
development or house where the vehicle was found. Fikile Futse
testified
that the scrapyard where she worked has been there since
2005, the vehicle was found in the vicinity of the scrapyard.
28.
The Court established that the distance between the vehicle
and the Appellant at the time he was arrested, was 20 paces.
29.
Nhlanhla Ngwenya was the second witnesses to testify on behalf
of the defence. Nhlanhla was 23 years when she testified. She
confirmed
the Appellant's evidence. She did not notice blood on the
person who fell on the Appellant. She, the Appellant and Nkosinathi
were
drunk, they had consumed 6 - 8 quarts of beer. They decided to
leave the tavern when the fight continued. The Appellant walked
Nhlanhla and Nkosinathi to Nhlanhla's house, he then turned back to
go to his place. They did not see him again that night.
30.
Nhlanhla testified that she did not witness the fight. She did
not pay much attention to the people who were fighting. She saw a
person fall on top of the Appellant. She could not say which part of
his body made contact with the Appellants.
31.
Nkosinathi Sibanyoni was the last defence witness to testify.
He was 21 years old when he testified. Nkosinathi confirmed the
testimony
of Nhlanhla in many respects. He went to the Appellant's
place looking for Appellant when he was informed that he had been
arrested
for public drinking. Nkosinathi confirmed the sitting
arrangement as confirmed by the Appellant and Nhlanhla. He did not
remember
the details of the fight or the people who were fighting. He
did not see any blood on the sneakers of the Appellant. He testified
that the person who fell on the Appellant was full of blood, he had
an open wound and blood was oozing from the wound.
32.
The defence closed its case after revisiting the scene where
the deceased was found and the scene where the motor vehicle was
found
the second time. The defence attorney was accompanied by the
relevant officers who were responsible for the respective scenes.
33.
After evaluating evidence the Court decided the only direct
evidence that implicates the Appellant to the commission of the crime
is the blood of the deceased which was found on his clothes, which
means that his guilt must be deduced or determined on a basis
of
inferences made from proved facts
.
34.
The Court concluded that the deceased was never at Shamas
Tavern, that the discrepancies of the State's case are not crucial to
the outcome of the case. The Court also found the State witnesses to
be credible.
35.
The Court found the defence's version to be improbable, as a
result the Appellant's version was rejected by the Court a
quo.
36.
The only connection between the deceased and the Appellant, in
as far as evidence is concerned, is the blood that was found on the
Appellant's sweater and sneakers that matched with the blood of the
deceased. The Court reasoned by inference that if deceased
was not at
Shamas Tavern therefore the Appellant was part of the people who
robbed and killed the deceased, the blood of the deceased
found its
way to the Appellant's sweater and sneakers during the commission of
the murder and robbery.
37.
The Court also concluded that the following facts had been
proved:
37.1.
The deceased died as a result of multiple injuries;
37.2.
The deceased was found at the open veld;
37.3.
The DNA results showed that the blood was found on the sweater and
sneakers of the accused was that of the deceased or similar
to 1 to
2.9 trillion;
37.4.
Blood stains of the deceased were discovered inside his motor
vehicle;
37.5.
The deceased's motor vehicle was discovered on the street and
ultimately parked at SAP13;
37.6.
The deceased's cell phone was never discovered;
37.7.
The Appellant was arrested in the early hours of 7 September 2008 in
the street;
37.8.
The Appellant and his friends were at Shama's Tavern at some stage;
37.9.
The police found an unlicensed firearm;
37.10.
The Appellant lied when he said the deceased fell on top of him.
38.
The Court a
quo
concluded that the deceased was behind
the wheel when he was attacked because there were blood droplets
inside the car on the driver's
side. There was blood on the roof
pillar and side skirt of the car.
39.
The Court a
quo
concluded that no other inference could be
drawn other than that the Appellant was one of the attackers of the
deceased and that
Appellant's sweater and sneaker were smeared with
the deceased's blood at that stage.
40.
This Court agrees that the State witnesses were credible, although
they could have gathered evidence better. This Court also
agrees that
the version of the Appellant is not reasonably possibly true. This
Court approaches the appeal from the accepted evidence
given by the
State.
41.
This Court has found itself confronted with the following
questions:
41.1.
Could the Appellant be in control of the deceased's vehicle without
car keys? The vehicle was later removed when the Appellant
was in
custody.
41.2.
Can an inference be drawn that the person who removed the vehicle had
the car keys, not the Appellant?
41.3.
Can the possibility be discounted that the Appellant occupied the
vehicle where it was initially found by police and came
into contact
with the blood of the deceased in the process?
41.4.
If this Court can draw the inference in 41.3 above, can it be said
that the only inference that the Court a
quo
could draw is
that the Appellant was one of the assailants of the deceased hence he
had the blood of the deceased on his sweater
and sneakers? In other
words more than one inference can be drawn.
41.5.
There is no evidence placing the Appellant at the scene where the
deceased's body was found. The only evidence that links
the Appellant
to the deceased is the deceased's blood.
41.6.
There is no evidence that suggests that the Appellant knew the person
or people who later removed the vehicle from where the
police
arrested the Appellant.
41.7.
I am of the view that another inference can be drawn that the
Appellant was not part of the assailants who attacked the deceased,
but could have occupied the vehicle later.
41.8.
If more than one inference can be drawn relating to the presence of
the deceased's blood on the Appellant's clothes, there
is doubt in
the State's case.
41.9.
Another glaring factor is that the Appellant and or his companion was
found in possession of a firearm. The deceased was killed
with sharp
and blunt objects. It appears like he was stabbed and bludgeoned. The
question is why not use the firearm in the possession
of the
Appellant.
41.10.
The Court a
quo
observed that the incident happened a long
time ago, that is in 2008, and that people do forget due to time. We
are of the opinion
that the police had forgotten some of the details
because of the passage of time. The defence witnesses were 22, 18 and
16 years
old in 2008 respectively. The defence witnesses could not
remember most of the events of the night as well.
41.11.
I find that more than one inference could be drawn relating to the
origin of the deceased's blood on the Appellant's sweater
and
sneakers. In the premises I find that the State did not prove its
case against the Appellant beyond reasonable doubt.
42.
The Appellate Division decided that in order to draw an
inference one has to follow two cardinal rules of logic. In R v Blom
1939 AD 988
at 202 - 2-3 it was held:
"That
the inference to be drawn must be consistent with all proven facts
and must be the only inference to be drawn. The proven
facts should
be that they exclude other reasonable inferences from them, save the
one to be drawn. If they do not exclude other
reasonable inferences
then there must be doubt whether the inference sought to be drawn is
correct."
43.
I am of the view that there is doubt in this matter that the
inference drawn by the court a
quo
was correct.
I
THEREFORE PROPOSE THE FOLLOWING ORDER:
1.
The appeal against both conviction and sentence should be upheld and
the conviction and sentence imposed are set aside.
______________
D.B.
TSHABALALA
ACTING
JUDGE OF THE HIGH COURT
I
agree
_______________
H.J.
DE VOS
JUDGE
OF THE HIGH COURT
Appearances:
For
the applicant: Ms. M.M.P Masete
Instructed
by: Pretoria Justice Centre
For
respondent: Adv. C.P Harmzen
Instructed
by: The Director of Public Prosecutions