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[2012] ZAKZPHC 43
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S v Madondo and Others (AR 512/11) [2012] ZAKZPHC 43 (8 August 2012)
IN THE KWAZULU NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 512/11
In the matter between:
ZAMOKWAKHE MADONDO
…......................................
FIRST
APPELLANT
SIPHOKUHLE MPEMBA
MADONDO
…...................
SECOND
APPELLANT
VEZUBUHLE NDABA FUNEKA
…................................
THIRD
APPELLANT
and
THE STATE
…........................................................................
RESPONDENT
_______________________________________________________
APPEAL JUDGMENT
Delivered on 08 August 2012
SWAIN J
[1] The appellants, with
the leave of the Court
a quo
(Kruger J), appeal against their
convictions on three counts of murder and two counts of attempted
murder, for which they each received
the following sentences:
Count 1 : Murder - Life
imprisonment
Counts 2 & 3: Murder
- 15 (fifteen) years’ imprisonment
Count 5 : Attempted
Murder - 10 (ten) years’ imprisonment
Count 6 : Attempted
Murder - 5 (five) years’ imprisonment
All three accused were
found not guilty on Count 4, being an
additional count of
attempted murder.
[2] Kruger J granted
leave to appeal on the basis that the convictions were based upon the
evidence of a single witness, Sibongokhule
Xaba, and that
“another
Court may come to a conclusion, that this Court reached the wrong
conclusion in accepting that evidence”.
Mr. Kemp S
C, who appeared for the appellants, submitted that this was indeed so
and that the reasoning of the Court
a quo
in accepting the evidence of Xaba and rejecting the
appellants’ versions was flawed, for reasons which I will deal
with in
due course.
[3] Central to a
resolution of this appeal, is a consideration of the approach to be
adopted by a trier of fact, when faced with
the task of assessing the
evidence of a single witness. In an oft repeated
dictum,
it is said that the evidence of such a witness must be
“clear and satisfactory in every material respect”
,
and that where the witness “
has an interest
or bias adverse to the accused”
the evidence must
be approached with caution.
R v Mokoena
1956
(3) SA 81
(A) at 85 H
In other words, the
evidence
“must not only be credible but also reliable”.
S v Janse van
Rensburg & Another
2009 (2) SACR 216
(C) at 220 G
but it is clear that
“There is no rule of thumb test or formula to apply when
it
comes to a consideration of the
credibility of the single witness”
S v Webber
1971 (3)
SA 754
(A) at 758
and
“The
trial Judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether it
is trustworthy
and whether, despite the fact that there are shortcomings or defects
or contradictions in the testimony, he is satisfied
that the truth
has been told”.
S v Sauls &
others
1981 (3) SA 172
(A) at 180 E – F
[4] An assessment of the
evidence of Xaba must accordingly be conducted in accordance with the
above
dicta
. What is
immediately apparent in the evidence of Xaba, is that he was
dishonest when asked, whilst giving evidence in chief by
Mr. du
Preez, who appeared for the State, what his relationship was with the
first appellant. His reply was
“
M’Lord,
we did not have any problem. The relationship between us was
harmonious”.
However, when
cross-examined he conceded that he had testified in court, two months
before the hearing in the Court
a quo,
and
had alleged that the first appellant had fired shots at him. Xaba
also agreed that he had been forced to leave the Msinga area
in
December 2007, when he laid a charge of attempted murder against the
first appellant, because of his allegation that the first
appellant
had fired shots at him. When he was asked why, in the light of this
evidence, he had not disclosed the acrimony between
the first
appellant and himself, having maintained it was harmonious, he
replied as follows:
“
I did not
find it necessary for me to do so, M’Lord, because even on that
occasion there had not been any acrimony between
him and I”.
Xaba was quite clearly
being disingenuous, in suggesting that there was no acrimony between
first appellant and himself as a consequence,
of the first appellant
having fired shots at him. The extent of his bitterness as a
consequence of this incident is indicated by
a passage later in his
evidence, whilst being cross-examined, when it was put to him that he
had not been truthful in this regard,
to which he replied as follows
“
Yes,
especially – it is correct, especially because there had not
been any argument or quarrel between us for him to have
shot or
attempted to shoot me.
I
am not an animal to be shot at at random
”.
Even though Xaba thereby
sought to explain the contradiction on the basis that when he said
their relationship was harmonious, he
was referring to the time
before the first appellant shot at him, this is quite clearly not the
case. When giving evidence in the
Court
a quo
in August 2011, the state of their relationship before
December 2007 was obviously irrelevant. The extent of his resentment
at allegedly
being shot at by the first appellant, is graphically
illustrated by the emphasised portion of his reply, set out above.
[5] Of greater
significance than the lie itself is the reason why Xaba lied in this
regard. The only reason would be to mask the
bitterness and
resentment he harboured towards the first appellant, which if
revealed would affect his credibility.
[6] A similar deceit is
revealed in the evidence of Xaba concerning his relationship with the
third appellant. When asked in evidence
in chief, what his
relationship was with the third appellant, he replied
“
There was no
problem between him and I at all”.
However, he also stated
that the deceased and he were in constant contact by telephone and
the reason he was in Tugela Ferry on
the day of the shooting, was
because the deceased had
“
........
requested me to fetch him, because of a fear for his life, because
there is an occasion that an attempt was made on his
life by Funeka,
who had attempted to shoot him”.
Funeka is the third
appellant. I find it inconceivable Xaba did not harbour ill-feelings
towards the third appellant as a consequence
of this, although it may
be that it was true that there was no direct hostility between the
third appellant and Xaba.
[7] What this evidence
reveals is that Xaba, on his evidence, had good cause to harbour
ill-feelings towards the first and third
appellants. Xaba quite
clearly had grounds to be biased against the first and third
appellants. As regards the second appellant,
Xaba likewise said he
did not have any problem with him and stated
“
.......he
was not close to me however, because I only knew him generally”.
He said at the time of
the shooting he recognised the second appellant, but had however
forgotten his name. He had however seen
him again
“quite
some time”
after the shooting in Gauteng, during
September 2009, the shooting having occurred in July 2008. He said
that the second appellant
came from the same area of Msinga, but he
did not see him regularly. He stated that when he saw him again in
Gauteng he remembered
his names. When asked whether he remembered his
full names he replied
“Yes, those that I think I know
him by”
. He said merely seeing the second
appellant again jogged his memory and the first name he remembered
was Mphemba. He then applied
his mind and then remembered “
the
second name, that is the middle name”.
In the
statement Xaba made he says the names of the second appellant are
Siphokuhle Mphemba Madondo, which are the names of the
second
appellant appearing on the record. It is therefore clear that the
first name he remembered was in fact the second appellant’s
second name. What is strange is that when his memory was jogged he
did not remember second appellant’s surname, despite the
fact
that he said he had grown up with the first and second appellants and
was able to identify the first appellant, and name his
as Zamokwakhe
Ntsebe Madondo, from the outset. I find it grossly improbable that
the name of the second appellant that he would
first remember, would
be what is in fact his middle name and not his surname. In my view,
what this again reveals is his distressing
lack of honesty. In this
regard, I respectfully disagree with the view of Kruger J that there
was nothing improbable about Xaba
suddenly remembering all three of
the second appellant’s names
“given the
fallibility of human memory”.
[8] A further distressing
example of Xaba’s dishonesty is that he stated when
cross-examined, that he had never left the Msinga
area because of
fear. However, when it was put to him that in the other proceedings
referred to above, he testified that he was
forced to leave the
Msinga area in December 2007 and flee to Kimberley for fear of his
life, he replied
“Yes, indeed I did leave ,M’Lord”.
[9] A further concern
with the evidence of Xaba, is that he stated that after he had
witnessed the shooting, he quickly returned
to his vehicle, which was
parked near the police station, to go home. When he was asked why he
did not immediately report the identity
of the assailants to the
police, he initially said he “
first went to make a
report to my people at home”.
When he was asked
why this was so, he replied
“I went to first report at
the deceased’s family”.
Later he said that
he
did not report the incident
“because
they do not do satisfactory work at the police station in question”
,
being Tugela Ferry. He said he had told the deceased’s family
that he had witnessed the shooting, but did not tell them
who the
culprits were. He agreed that he had only reported the identity of
the assailants, to the police in April 2009, when he
had made a
statement. He initially proffered as an explanation for the
inordinate delay in reporting the matter, the fact that
the police at
Tugela did not do a satisfactory job, but later when pressed to
explain the delay he stated the following
“
The reason
M’Lord, is that at that stage and all along I did not have the
contact number for the police in Pietermaritzburg
and I had no
confidence or trust in the police from Tugela”.
He then agreed that when
he was contacted by the police from Pietermaritzburg, regarding the
matter where he had laid a charge of
attempted murder against
the first appellant, only then did he make a
statement in the present
matter.
[10] What is immediately
apparent is that the reasons advanced by Xaba, as to why it took nine
months for him to implicate the first
and third appellants directly,
and the second appellant indirectly, are grossly improbable. What is
also of grave concern is that
he only did so, after the first
appellant had allegedly fired at him, causing him to lay a charge of
attempted murder against the
first appellant. The real danger
consequently arises that Xaba falsely implicated the first appellant
in the present case, in retaliation
for the alleged attack upon him
by the first appellant, and implicated the third appellant, in
retaliation for the alleged prior
attack upon the deceased. As
regards the second appellant, it is not without significance that he
was only named by Xaba some months
after he had implicated the first
and third appellant, under circumstances which I have described as
grossly improbable.
[11] When all of the
above is considered, it is quite clear that the evidence of Xaba was
not clear and satisfactory in every material
respect. Xaba was biased
against the appellants and was neither a credible, nor reliable
witness. Xaba was dishonest and I am not
satisfied that he told the
truth concerning the killings.
[12] I accordingly
respectfully disagree with the conclusion of Kruger J that the
evidence of Xaba, could be relied upon and was
credible. In this
regard, Kruger J found that the evidence of Xaba was not seriously
challenged and in particular his evidence
identifying the appellants
as the persons responsible for the shootings, was not challenged and
concluded that as a consequence
“.....it does not render
his evidence unacceptable, nor does it mean that he is not telling
the truth”.
In reaching this conclusion Kruger J,
with respect, misdirected himself as the following was put to Xaba
“
You see, Mr.
Xaba, my instructions are that the accused were never there near the
Spar”.
If however, I have
misconstrued the words of Kruger J and he intended to convey that
Xaba’s identification of the appellants,
was not shaken in
cross-examination, the fact remains that Xaba’s testimony
remains unacceptable, for the reasons set out
above. The fact that
the reliability of the identification was not shaken in
cross-examination because Xaba said he knew the appellants,
it was
broad daylight, he had a good vantage point and he saw their faces as
they walked back to their car after the shooting,
can have no bearing
upon the serious shortcomings in the credibility of his evidence,
which was revealed in cross-examination.
[13] I also respectfully
disagree with the conclusion of Kruger J that the versions of
“accused Nos 2 and 3 were not put to the witness Xaba
and Inspector Dlamini, save to say that they were not present”.
It is difficult to see what else could be put to these
witnesses as the appellants defence was that of an alibi and the
first appellant
and second appellant, could not remember where they
were on the day of the shooting. The third appellant stated that he
was at
the taxi rank in Pretoria at the time of the shooting, but it
is difficult to see how putting this to these witnesses would have
been of significance, particularly as Dlamini, the Investigating
Officer, by clear implication accepted when giving evidence, that
the
appellants had told him when he questioned them after they had been
arrested, that they were not in the Msinga area, at the
time of the
shootings. Although it is correct as referred to by Kruger J, that
the appellants denied instructing their Counsel
that Inspector
Dlamini had fabricated the statement of Xaba to implicate them,
because he had no other witness in the case, I respectfully
differ as
to the weight to be attached to this apparent contradiction, in the
context of the clear shortcomings in the evidence
of Xaba. For the
same reason I do not regard the observations of Kruger J of Xaba’s
demeanour, as being of significance.
[14] As regards the
appellants’ evidence, it is trite that they bore no
onus
to establish their alibis and if reasonably possibly
true they were entitled to be acquitted. The evidence of the
appellants’
alibis must be considered in the context of a
proper evaluation of the merits and demerits of the State and defence
witnesses,
as well as the probabilities of the case
R v Hlongwane
1959 (3)
SA 337
(A) at 340 H – 341 A
S v Guess
1976 (4)
SA 715
(A) at 718 H – 719 A
When considered on this
basis and with particular regard to the conclusions I have reached as
to the shortcomings in the evidence
of the single State witness, I am
satisfied that the evidence of the appellants is reasonably possibly
true and that the State
failed to prove their guilt on all of the
counts beyond a reasonable doubt. The convictions accordingly cannot
stand.
The order I make is the
following:
The appeal succeeds and
the convictions and sentences imposed are set aside in respect of
all three appellants.
The following verdict
will be substituted for the verdict of the Court
a quo
“
Accused
Nos. 1, 2 and 3 are found not guilty on all of the counts”.
__________
K. SWAIN J
I agree
__________
GYANDA J
I agree
__________
LOPES
J
Appearances
/
Appearances:
For the Appellant
: Mr. K. J. Kemp S.C.
Instructed
by
: Hulley & Associates
C/o Mastross Incorporated
Pietermaritzburg
For the Respondents
: Mr. R. du Preez
Instructed
by
: Director of Public Prosecutions
Pietermaritzburg
Date of Hearing
:
03 August 2012
Date of Filing of
Judgment
: 08 August 2012