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2015
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[2015] ZAGPPHC 416
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Vimbela v S (A572/2014) [2015] ZAGPPHC 416 (26 May 2015)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A572/2014
DATE
OF HEARING: 26 MAY 2015
In
the matter between:
VIMBELA,
MADLISA
APPELLANT
and
THE
STATE
RESPONDENT
J U D G M E N T
AVVAKOUMIDES,
AJ
1.
The
appellant was charged with, and convicted of, one count of murder
read with the provisions of
section 51
of the
Criminal Law Amendment
Act 1997
, Act No. 105 of 1997. He was represented at the trial and
was convicted on 24 March 2014 and sentenced to 7 years imprisonment.
The appellant was also declared unfit to possess a firearm in terms
of section 103 of
Firearms Control Act 2000
, Act No. 60 of 2000.
2.
The
state’s case was based largely solely on circumstantial and
hearsay evidence. The first witness, Mr Ntakumba, did not
implicate
the appellant in any manner. The second witness, Mrs Bangani did not
see the stabbing of the deceased and was unsure
to the extent that
she, upon being asked whether the eye witness, one Simangele,
actually saw the stabbing replied that “she
thinks so”.
Of critical importance is that Simangele’s evidence was not led
to corroborate the hearsay evidence of
Mrs Bangani.
3.
The
trial court allowed the hearsay evidence and appears to have applied
the provisions of
section 3
of the
Law of Evidence Amendment Act
1988
, Act No. 45 of 1988. The said provision permits the
admissibility of hearsay evidence in three board circumstances,
namely:
(a)
Where
the party or parties against whom the evidence is to be adduced
agrees to the admission thereof.
(b)
Where
the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings; or
(c)
Where
the court having regard to the nature of the proceedings; evidence;
purpose for which the evidence is tendered; probative
value of the
evidence … and where the court is of the opinion that such
evidence should be admitted in the interests of
justice.
4.
No
forensic evidence in respect of the murder weapon was admitted in
evidence. I am of the view that the trial court misdirected
by
firstly admitting the hearsay evidence of Mrs Bangani on the basis
that the evidence of Simangele would be led, and when this
evidence
was not led, to conclude that such evidence could be admitted because
it was in the interests of justice. The trial court
was not entitled
to do so in the circumstances.
5.
The
trial court disregarded the evidence of the appellant’s
evidence that he was beaten severely by a group of people because
of
him having worn a T shirt bearing the name of National Union of
Mineworkers (NUM). There is no dispute that the appellant suffered
severe injuries by the assault on him. The issue arose about whether
the attack on the appellant took place before or after the
stabbing
of the deceased. No evidence in this regard was presented. The
trail court did not place any weight on the evidence
of the
appellant.
6.
There
is no duty that rests on the accused to convince the court of the
truth of any explanation he gives. If the accused gives
an
explanation, albeit improbable, the court is not entitled to convict
unless it is satisfied that not only is the explanation
improbable,
but false beyond reasonable doubt. See R v Difford
1937 AD 370.
7.
In
my view the appeal must succeed. Consequently, taking all the
circumstances into account I make the following order:
7.1 The appeal is upheld.
7.2 The
conviction and sentence are set aside.
___________________________
AVVAKOUMIDES, AJ
ACTING
JUDGE OF THE HIGH COURT
I
agree:
__________________________
HUGHES, J
JIUDGE OF THE HIGH COURT
Representation
for the Appellant:
Counsel
J. S.
Nyathi
Instructed
by
Finger Phukubje Inc.
Representation
for Respondent:
Counsel
A. T. Moetaesi
Instructed
by:
The
State