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[2012] ZAKZDHC 89
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S v Ndawonde (CC124/2012D) [2012] ZAKZDHC 89; 2013 (2) SACR 192 (KZD) (11 December 2012)
15
REPORTABLE
IN THE KWAZULU –
NATAL HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
CC124/2012D
THE STATE
versus
BONGINKOSI MZIWEBANDLA
NDAWONDE
a 25 year
old South African male, of 2630 Mzomusha, White City Inanda
(Hereinafter referred to
as the accused)
___________________________________________________________
JUDGMENT
Delivered on 11 December
2012
JV SANDERS, A. J.
[1] The Accused is
charged as per the indictment. The Accused pleaded not guilty to all
charges. No statement in terms of section
115 of act 51 of 1977 was
made on behalf of the Accused, save to say that the Accused denied
all the allegations against him. Before
any evidence was led the
defence made admissions in terms of
section 220
of the
Criminal
Procedure Act 51 of 1977
relating to the cause of death of the
deceased, and the necessary chain evidence in connection therewith.
After which the Accused
confirmed that the admissions made on his
behalf were factually correct.
[2] The state called two
witnesses namely
Zandile Ayanda Mdluli
(hereafter “Mdluli”)
and Constable Mduduzi Mhlanga
(hereafter “Mhlanga”)
.
The defence in turn called the Accused himself to the stand who
testified on his own behalf.
Mdluli
is an accomplice to the
murder of the deceased. She is also a single witness in respect of
all the events she testified about, save
the arrest of the Accused.
Mdluli was however not warned by the Court in terms of
section 204
of
the
Criminal Procedure Act, as
Ms. Vahed who appeared for the state
advised the Court that
Mdluli
had already been indemnified
against prosecution in regard to the charges that the Accused faced
when she
Mdluli
testified at an earlier trial before my sister
Madam Justice N Govender Acting,in which her mother and her brother
were accused
of the very charges that the accused faced before us in
this trial. The Court agreed with the submission made by Ms. Vahed
that
under the circumstances any warning that this Court may give to
the witness in terms of
section 204
of Act 51 of 1977 would be
entirely superfluous.
[3] I have decided to set
out the prevailing legal position with regard to how the evidence of
a single accomplice witness should
be approached and evaluated by
this Court before I undertake a summation of the evidence before us.
[4]
Mdluli
is a
single witness in as far as the bulk of her testimony is concerned.
The dangers of relying exclusively on the sincerity and
perceptive
powers of a single witness has evoked a judicial practice that such
evidence should be treated with caution; It would
seem that this
practice originated from the remarks made by
De
Villiers JP
(as
he then was) in
R
v Mokoena
1
where
he said following
“
Now
the uncorroborated evidence of a single competent and credible
witness is no doubt declared to be sufficient for a conviction
(by
the section), but in my opinion that section should only be relied on
where the evidence of a single witness is clear and satisfactory
in
every material respect. Thus this section should not be evoked where
for instance the witness has made a previous inconsistent
statement
where he contradicts himself in the witness box
,
where he has been found guilty of an offence involving dishonesty,
where he has not had proper opportunities for observation etc.”
[5] Is the practice
advocated by De Villiers JP a rule of law or merely a salutary guide?
As the learned authors
Zeffertt
& Paizes
2
have
pointed out “
it
is regrettable that courts have occasionally tendered to ‘tick
off’ the various factors mentioned by the learned
judge, almost
as if they were applying a statutory provision. The learned judge
clearly did not intend to lay down a mechanical
rule, for, as
Schreiner JA held in R vNhlapo
3
,
the cautionary rule “may very well be helpful as a guide to the
right decision; but it naturally requires judicious application
and
cannot be expected to provide, as it were automatically, the correct
answer to the question whetherthe evidence of the Crown
witness
should accepted as truthful and accurate. These remarks were quoted
with approval inR vs Bellingham
4
;
it is clear that the more flexible approach to single witness
testimony represents the better and majority view. See alsoS vs
Buda
& Others
5
wherein Macdonald AJA
expressed the view that the cautionary rules are no more than guides,
albeit,
very valuable guides
which assist the Court in deciding whether the Crown has discharged
the onus resting upon it. (89F) Moreover
he added that ‘the
exercise of caution should not be allowed to displace the exercise of
common sense; and once a judicial
officer has anxiously scrutinized
the evidence of a single witness he should not be swayed by fanciful
and unrealistic fears; (at
90 E & F); SeeR v J
6
;
Artman&Another
7
;
and alsoS vs Janse Van Rensburg and Another
8
.
”
[6] The Court now turns
as it must to consider the legal position as far as accomplices are
concerned. Section 257 of the old Act
provided that a court could
only convict on the single evidence of an accomplice if the offence
had be some other evidence than
the evidence of the accomplice been
proved to have been committed; This section no longer applies.
However despite the demise of
section 257 the cautionary rule
relating to the evidence of an accomplice witness survives. Its
purpose in the words of Schreiner
ACJ, in
R
Mpompotsche &Another
9
,
“
is
to ensure that, even if the section is satisfied there is some
further guarantee that the right man has been brought to trial.”
The
reasons for approaching the testimony of and accomplice with care
were set out by Holmes JA in
S
vHlapezula & Others
10
as
follows:
“
first
he is a self-confessed criminal. Second, various considerations may
lead him falsely to implicate the accused, for example
a desire to
shield a culprit or, particularly where he has not been sentenced the
hope of clemency. Third, by reason of his inside
knowledge, he has a
deceptive facility for convincing deception – his only fiction
being the substitution of the Accused
for the culprit”.
[7]
Wigmore
however, expressed the view that the supposed promise or expectation
of conditional clemency is the essential element, and
that without it
the whole basis of mistrust fails. The learned author added: “We
have passed beyond the stage of thought
in which the commission of
crime, self-confessed, is deemed to render him radically a
lair………………The
extreme case
of the wretch who fabricates merely for the malicious desire to drag
others down in his own ruin can be no foundation
for a general
rule.”SeeR v Gumede
11
;
InIsaacs & Another vs S
12
the
court pointed out that since the accomplice had already been
convicted and sentenced so that any hope of being either indemnified
or found not guilty had fallen away, his intimate knowledge of the
planning and commission of the crime – far from being
a basis
for not trusting his testimony – ought to be regarded as adding
value to it.”
[8] The Court now turns
to applying the law as stated above to the facts of this particular
matter. It is common cause that the
witness
Mdluli
had
already been indemnified against prosecution in respect of the
charges the Accused presently faced in this Court. Better yet,
she
had already received her indemnity on the day when she caused the
Accused herein to be arrested by pointing him out to the
police as
the person who had killed the deceased,
her
stepfather. This places
Mdluli
on a
completely different plain from the usual position in which an
accomplice who has been warned in terms of 204 of the Criminal
Procedure Act finds himself. In the usual scenario the wretched
witness is obliged to tread a very lonely path as he desperately
strives to disgorge enough information about the crime he and his
erstwhile partners in crime committed in order to establish their
guilt, while at the same time implicating himself sufficiently in the
commission of the crime to establish his bona fides,thereby
securing
his indemnity from prosecution at their expense. Such a witness faces
the ghastly prospect should indemnity not be granted
for whatever
reason, that prosecution could ensue,
and
upon conviction the very real possibility of confronting his
erstwhile partners in crime in some dimly lit prison corridor or
worse yet, in a crowded prison cell in the dead of night looms large.
In the light of the above considerations it is no wonder
that such a
witness’ evidence should be treated with the utmost care. None
of these considerations apply to the evidence
of
Mdluli.
After
careful consideration of the evidence before us I am satisfied that
the only cautionary rule applicable to
Mdluli’s
evidence is the
cautionary rule which applies to the evidence of any single witness.
That said the Court is not unmindful of the
fact that
Mdluli
is an
accomplice witness and that remains a factor which the Court will
undoubtedly take into accountwhen the entire mosaic of the
evidence
before us is considered..
[9] A summation of the
evidence of
Mdluli
is as follows. She informed the Court that
she is 29 years of age, and that the deceased was her stepfather. On
the evening of the
31
st
of December 2008, she was at home
in the company of her mother, her brother Vusi and the deceased. They
had been drinking wine
and vodka. As the evening wore on the deceased
called her to the back of the house, whereupon he informed her that
he was not her
biological father and proceeded to make advances to
her, at which point he also tried to kiss her. She repelled his
advances. She
then went and woke her mother who was asleep at the
time, and reported to her what had transpired. Suspecting that the
deceased
would try again, it was agreed between them that her mother
would go and hide behind the house which she duly did. Thereafter the
deceased calledcalled her to the back of the house, where he once
again made improper advances of a sexual nature to her. The two
of
them remained there until the early hours of the morning when they
were disturbed by a neihbour. As a result she, her mother
and her
brother Vusi later got together and decided that the deceased should
be killed. The reason that they reached this conclusion
was not
solely toprotect her from the deceased’s advances, but also due
to the fact that he had a lover at work and her mother
was afraid
that she was going to lose the deceased in any event. During their
meeting Vusi was tasked with finding a person or
persons to carry out
the killing of the deceased.
[10] On Friday the 24
th
of July 2009
Mdluli
received a telephone call from Vusi who
advised her to go to a specific bus stop at eleven hundred hours in
order to meet the person
whom he (Vusi) had sent. According to Vusi
that person had agreed to kill the deceased. She duly proceeded to
the said bus stop
at the appointed time. There she met the person
whom she identified by his clothing as he was dressed just as Vusi
had said he
would be. He wore cream corduroy trousers, white takkies,
a black leather jacket and a striped woolen hat. In appearance he was
short and dark, with a beard and had facial hair on his cheeks and
big eyes. He carried a small orange plastic bag, containing
what
looked like a CD holder. She had never seen the person before. This
person approached her and introduced himself by saying
that he had
been sent by Vusi. She informed the Court that that person was
present in Court. Upon being asked to point him out
she pointed out
the Accused as being the person she was referring to.Between herself,
her mother and Vusi, they used the word Polly,
as their code word for
identifying the hit man whose services they sought to engage. This
was not the Accused’s real name
nor was he even aware of it.
Their mother had made up the code word. On the way home the Accused
inquired why they wanted the deceased
to be killed. When she gave him
the reasons, the Accused responded by saying that the deceased
deserved to be killed.They walked
to her home and upon arrival there
she took the Accused into her bed room. She then telephoned her
mother who was at her place
of employment in Balito; after which she
handed the phone to the Accused who then spoke to her mother. Later
the Accused went out
into the yard in order to see the lay of the
land and to determine the spot where he would stand when executing
the deceased. There
were trees in the yard and amongst themwere an
orange tree and a plum tree. There was also a kraal which used to be
a goat kraal.
The Accused then left. On Sunday the 26
th
of
July2009 she was visiting her neighbour when she received a telephone
call from Vusi instructing her, that she was to go to
a certain bend
in the road where the borehole is at nineteen hundred hours that
evening in order to ‘meet ‘them’.
She did what Vusi
had instructed her to do, and at the appointed time and place she met
the Accused who was in the company of another
man whom she did not
know. There were street lights at this spot and the lights were
shining at the time. The other person was
wearing blue jeans and
white takkies. They did not linger, and immediately set off for her
home. There were no street lights on
route to her home. Upon their
arrival at her home she took the two men into her bedroom. The only
other persons present at the
homestead at the time were the deceased
and her brother’s child. Her mother was aware of what was
afoot. At that stage she
called her mother. It was dark at the time,
and there were no lights on in her bedroom save the light emitted by
the television
which was on, from it she could see, but not clearly.
The two men lay down on her bed, and she lay down on the floor. She
did not
fall asleep, she was watching television. The men must have
slept because she heard snoring. At three hours thirty the next
morning
both men put on overalls and gloves which they referred to as
their ‘working clothes’. Before leaving her room they
told her to lock the door after they had left and get into bed. After
the two men had left her room she did as she had been instructed.
As
she lay in bed she heard the deceased going outside to fetch water
from the tap in the yard, as he habitually did. She then
heard the
sound of many gunshots. She got up and exited her room, at which
point, she saw her mother. She also saw the deceased
lying outside.
There was no sign of the Accused or his companion. Later after the
police arrived and took photographs she made
a statement to them. The
statement which she made contained some aspects which were true and
some which were false. She essentially
denied any knowledge and / or
involvement as far as killing of the deceased was concerned.
[11] The next time she
saw the Accused was on the 17
th
of August 2009 in Stanger.
This was a planned meeting at which her mother was also present. The
purpose of the meeting was for
the Accused to receive his payment for
killing the deceased. This meeting took place in broad day light in
the middle of the day.
She had to be present at the meeting as her
mother did not know the Accused. She saw the Accused standing outside
Pep stores. She
approached him and took the Accused to her mother.
The three of them then proceeded to KFC. Inside the KFC her mother
handed the
Accused money in the sum of twelve thousand rand.
Mdluli
told the Court told the she did not count the money that her
mother gave to the accused but that her mother had done so. This
amount
was not the full amount agreed upon. Her mother informed the
Accused that he would receive the balance of three thousand rand the
following week. The Accused was none too pleased about this
arrangement but he accepted it. On the 24
th
of August 2009
Mdluli
again met the accused in Stanger. Once again she was in
the company of her motheron this occasion they met the Accused near
Discom;where
afterthey once again proceeded to KFC where her mother
handed the accused the sum of three thousand rand which constituted
full
and final payment of the agreed price. This meeting, like the
last, took place in broad day light. The next time she saw the
accused
was during September 2009 - she was at home one afternoon,
when the accused unexpectedly paid them a visit. He told them that he
was passing through their area, and had decided to check on them. On
that occasion he spent under half an hour with them.
[12] On the 20
th
of July 2010 she and her mother were both arrested, for the part that
they had played in the murder of the deceased. When she was
arrested
she initially stuck to the original story which she had told the
police. Whilst travelling to Durban with the investigating
officer
she was asked whether she had seen her mother handing over a sum of
twelve thousand rand, as payment for the killing of
the deceased. She
then realized that the police were in possession of a lot of
information. She then decided to come clean and
tell the police the
whole truth. As a consequence of that decision she ended up
testifying against her mother and brother at their
trial, after which
she was indemnified by that Court from prosecution in respect of the
charges that the Accused faced in this
Court.
[13] On Sunday the 20
th
of May 2012 she was visiting her aunt who rents a room in the Inanda
area. Whilst there she saw the accused walking in the company
of
other persons; it was overcast at the time but she saw him clearly as
he walked towards her. He was engrossed in conversation
and did not
notice her. She immediately ran to her aunt who was in the house and
used her phone to contact the investigating officer.
Having made her
report, the investigating officer asked her to contact the Inanda
police station. In the meantime she had requested
her aunt to follow
the accused with a view to keeping tabs on him. The end result of her
efforts was that she pointed out the accused
to the police as he was
seated in the stands of the recreation grounds. She further told the
police the Accused was wearing a red
hooded jacket. She was present
when the Accused was arrested; but he did not see her at the time,
nor did she reveal herself to
him. The version put to the witness on
behalf of the Accused amounted to a bare denial of her version of
events, with the exception
that he admitted that he was arrested at
the Inanda recreation grounds on the 20
th
of May 2012. The
Accused also denied that he ever wore sun glasses - this was in
response to
Mdluli’s
evidence to the effect that on one
of the occasions when she had been in his company he was wearing sun
glasses on his head.
[14]
The next witness called by the state was
Mduduzi Mhlanga
(hereafter
Mhlanga).He told the Court. He told the court that he was a constable
in the SAP and that he was the person who arrested
the Accused. At
the time of his arrest the accused was sitting in the stands at the
recreational centre in Inanda watching a sporting
event. The accused
was arrested after he had been pointed out to him by
Mdluli
as
the person who killed her stepfather, the deceased.Nothing turns on
the cross examination of this witness. In essence it was
not disputed
that the Accused was indeed arrested at the Inanda recreation centre,
whilst he was a spectator seated in the stands
watching a sporting
event. Neither was it disputed that the reason for the accused’s
arrest was because he had been pointed
out to the police as the
person who had killed deceased. The Accused does not dispute the
role
Mdluli
played in his arrest. He confirms her evidence to
the effect that he did her at all on the say he was arrested. The
Court is of
the view that nothing turns on exactly what role was
played by each policeman on the day in question it being common cause
that
Mhlanga
was indeed in the company of a colleague when the
accused was arrested.
[15] After the state case
was closed the Accused was called to the stand to testify on his own
behalf. He was the only witness to
do so. In essence he
denied
Mdluli’s
evidence in its entirety to whatever
extent such evidence related and / or referred to him. He told the
Court that he had never
seen
Mdluli
in his life under any
circumstances. He could give no specific reason why she would falsely
implicate him, of all people,in the
killing of the deceased. He told
the Court that he was self-employed as a freelance photographer. The
neither owned a studio nor
did he ever operate from one. His modus
operandiwas to stop potential clients in the street and offer to take
their photographs,
and if the offer was accepted he would
subsequently deliver the photographs personally to a given address.
In cross examination
he agreed that he heard the evidence of
Mdluli
to the effect she had seen him wearing the following items during
the occasions when she alleged that she had met with him; namely
1) a
black leather jacket; 2) Powder blue trousers made of linen; 3) Cream
corduroy trousers. The Accused conceded that he had
heard
Mdluli
mention the said items in her evidence as items of clothing which
he had allegedly worn at the times, or at least some of the times,
that he had spent in her company. He conceded that he did in fact own
a black leather jacket. Furthermore he also owned cream trousers
which were made of a thickish fabric which was not corduroy but was
similar to the fabric which jeans are made from. He also owned
powder
blue trousers, which were not made of linen but were made of a
similar fabric. Upon being asked how
Mdluli
knew about
specific items in his wardrobe given his version that they had never
met, his answered that he simply did not know. That
concludes the
Court’s summation of the evidence before us.
[16] In evaluating the
evidence the Court accepts it has been admitted that that the
deceased died as a result of gunshot wounds
as per exhibit “B”
being the report on the medico legal postmortem examination of the
body of the deceased. This Court
also accepts that the various roles
played by the witness
Mdluli,
her mother and her brother Vusi
in bringing about the deceased death are not in dispute. That being
so it is our considered view
that the only issue on which this matter
turns is whether this Court can find beyond a reasonable doubt - that
Mdluli
was not only truthful in identification of the Accused
as the person who was hired to kill the deceased, but also that in
all the
surrounding circumstances of this case her identification of
the Accused may be relied upon beyond any reasonable doubt. Section
208 of
Criminal Procedure Act 51 of 1977
, provides that the Court may
convict on the evidence of any single witness provided that the Court
is satisfied that the evidence
of that single witness is satisfactory
in every
material
respect.
[17] We find that
Mdluli
is an exceptionally good witness in terms of her attention to
detail and her ability to recall and relate events in the
chronological
order of their occurrence. According to
Mdluli
she
had occasion to observe the Accused in various different situations
and locations both at night but mostly by day. The Court
is satisfied
that in considering the entire mosaic of her evidence that there is
no doubt that she had sufficient opportunity for
proper observation
and that the circumstances were such that the Court can safely rely
beyond a reasonable doubt upon her identification.
The Court may
safely discard any possibility of
Mdluli
telling lies in order
to falsely implicate the Accused. Had any bad blood existed between
them this Court has absolutely no doubt
that the Accused would have
brought it to the Court attention, as constituting a motive for her
singling him out as the culprit.
[18] When turning to the
Accused evidence, his defence amounts to a bare denial. However when
one considers his evidence carefully
it is telling that there is both
circumstantial and direct evidence in the Accused’s version of
events which corroborate
Mdluli’s
version of events. It
should be remembered that what the Accused is in essence telling this
Court is that
Mdluli
has made a terrible mistake, in that she
has identified a totally innocent man as the man they had hired to
kill the deceased. The
Accused would like the Court to accept that
the forces of coincidence and misfortune have combined soas to ensure
that his physical
features when taken together collectively give him
an appearance which is close enough to the description of the real
killer so
as to cause
Mdluli
to mistakenly identify him as
that person. But is gets worse for the Accused, the Accused would
like that Court to accept that having
mistakenly chosen him out of
all the people she could have picked by sheer good fortune for
Mdluli
hejust happens to have to sort of life style that one might
reasonably expect him to have if her version were true. But what
really
proves beyond any doubt (let alone reasonable doubt) that
Mdluli
is telling the truth is the fact that
Mdluli
is
able to identify various items of clothing which she says the Accused
was wearing on the occasions when they met. The Accused
concedes that
he indeed owns such clothing; and is unable to offer any explanation
on his version of events as to how
Mdluli
would have any idea
what items of clothing were to be found in his wardrobe. It is the
considered view of this Court that the knowledge
of the Accused
clothing takes us beyond the realm of coincidence and misfortune. The
Court finds that the quality of
Mdluli
as a witness coupled
with the corroboration of her evidence regarding the clothing which
the Accused admits ownership of, is sufficient
to prove beyond a
reasonable doubt that
Mdluli’s
evidence is the truth. In
the premise the Accused is convicted on count 1 as charged.
DATED
AT DURBAN THIS 11
th
DAY OF DECEMBER 2012.
J.
V. SANDERS A.J.
1
1932
OPD 79
at 80;
2
The
South African Law of Evidence 2
nd
Ed (2009) at page 863;
3
1953
(1) PH H11 (A);
4
1955
(2) SA 566
(A) at 569 paragraphs G – H
5
2004
(1) SACR 9
(T) at 14 – 15;
6
1966
(1) SA 88 (SRA;
7
1968
(3) SA 339
(A) at 341 (C)
8
2009
(2) SACR at 216 (C) at 9
9
1958
(4) SA 471
(A) at 476 E;
10
1965
(4) SA 439
(A) at 440 D – E;
11
1949
(3) SA 749
(A) at 756
12
[2006]
2 All SA 163
(C)