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1984
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[1984] ZASCA 141
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S v Zimu and Another (210/84) [1984] ZASCA 141 (26 November 1984)
CASE NO. 210/84
/CCC
IN THE SUPREME COURT OF SOUTH
AFRICA
(APPELLATE DIVISION)
In the matter between
LESI NKOSI ZIMU
FIRST APPELLANT
VONGO BONGINKOSI KHWELA
SECOND APPELLANT
AND
THE STATE
RESPONDENT
CORAM
: WESSELS, JANSEN,
JOUBERT JJA et
GALGUT, ELOFF AJJA
HEARD
: 5 November 1984
DELIVERED
: 26 November 1984
JUDGMENT
ELOFF
,/
2.
ELOFF, AJA:
The two appellants were
convicted in the Durban and Coast Local Division of murder, and, no extenuating
circumstances having been
found, they were sentenced to death. With the leave of
the court a
quo
they appeal against their conviction and sentence.
The
unchallenged evidence led in the court a
quo
established that in the
early hours of Sunday 12 April 1983, a couple of black men descended on the
house of one Luthuli in order
to commit robbery. Luthuli was not at home and his
kraal was occupied only by the deceased, who was
his/
3.
his wife, and their three young children
Nompumelelo, aged 14, Vusumuzi, aged 13, and Ntombenhle, aged 10. The attackers
first noisily
beat on the door of the house, broke some windows and demanded
entrance. The deceased told Nompumelelo and Vusumuzi to flee, and
they hurriedly
left the house through a window. They ran to and hid at a spot within hearing
distance from their kraal. Ntombenhle,
the youngest child, remained in the
house. The attackers continued to hammer on the door, and demanded money. They
were armed with
assegais and threatened that if money was not produced, they
would kill the deceased. At that stage the deceased told Ntombenhle
to leave
the/ ......
4. the house through a window, which she did. She found and
joined her brother and sister where they were still hiding. In the meantime
the
deceased endeavoured to appease the intruders by telling them that although she
had no money, she would be able to give them
something in the morning when her
husband returned from work. That did not satisfy the men, and they stabbed and
bludgeoned the deceased
to death. After putting the beds in the house alight
they left. The three young children remained in hiding until day broke, when
they sought refuge in the house of a neighbour.
The point in issue in the court
a quo/
5.
a q
uo
was that of the identity of the
assailants.
Ntombenhle testified that they were the two accused,
and
Vusumuzi said that he recognised the voice of
one of the men as being that of
the second appellant.
Both the appellants denied that they had anything
to
do with the attack.
The trial court recognised that
the state case depended very largely on
the evidence
of Ntombenhle. It acknowledged the need to be cautious
in
assessing the testimony of so young a child. Making
due allowance therefor,
the court found that it could
accept her word -
"The Court was impressed by this young
girl/
6.
girl. She was a bright intelligent child and gave
her evidence well."
The admitted fact that Ntombenhle knew the appellants
well, and had often
seen them at her parents' kraal,
was found to be a factor of considerable
importance.
A supportive feature was found to lie therein that
the two
appellants testified that during the early
hours of that fateful morning they
happened to be
together - that was something which Ntombenhle would
not have known unless
she in fact saw the two of them
in each other's company. The fact, established by
the evidence, that Ntombenhle gave the names of the
two appellants to the police during the day, was held
to/
7. to enhance her reliability. And the court found the confirmatory
evidence of voice identification by Vusumuzi acceptable. He had
also previously
seen the appellant concerned at his parents' kraal, and had often heard him
speak.
There was also evidence before the court which was led by the state in
relation to an alibi defence which was foreshadowed when the
two appellant's
enlarged on their plea of not guilty. Their counsel then informed the court that
they would say that they spent the
night at the house of one Mpanza. One Siphiwe
Gumede was called by the state, and testified that he was at Mpanza's house
together/
8.
together with the appellants and a number of
other persons during the night in question. They were all members of a soccer
club who
had met preparatory to a match which was due to be played the following
day. At about 1 a m the non-players had however to leave
to make room for the
players to sleep. Gumede said that he and the two appellants had for that reason
to depart. It was put to him
by cross-examining counsel that the appellants
would say that they stayed at the "football camp" the whole night. When the
appellants
testified however, they no longer claimed that they were at Mpanza's
kraal the whole night. They admitted that they left together
with Gumede, but
they
denied/ ......
9. denied that that was at 1 a m. It was about 6 a m. 'They
left - so they testified - to find liquor at the kraal of a certain Mkhize,
and
they returned some time later to Mpanza's kraal to join the other members of the
soccer club in their journey by bus to the venue
of the soccer match which had
been planned for the Sunday.
The trial court found the evidence of both appellants to be unsatisfactory,
and rejected it. In its view the appellants, having heard
the evidence of
Gumede, decided "to tailor their evidence to fit, insofar as it could, with the
evidence of Siphiwe Gumede."
Before/
10. Before I discuss the arguments presented by counsel for the
appellants in support of their appeal, I turn to deal with a petition
to this
court launched by them on 3 October 1984, after their appeal was noted. It is
for an order setting aside their convictions
and sentences, and remitting the
matter to the court a
quo
for the purpose of hearing the evidence of two
witnesses called Themba Mpanza and Dumisani Makhanya. The names of these persons
were
mentioned during the trial in the court a
quo
. Counsel who then
appeared for the appellants informed the court that he had been instructed to
call them in support of the alibi,
but that they could not be found. The
investigating officer testified that
he/
11.
he had not been able to locate them; he explained that in the wake of recent
faction fights a number of people, including the two
persons concerned, had left
the area. In an affidavit lodged in support of the appellants' application of 3
October 1984, a clerk
employed by their attorneys said that the two persons were
traced and were brought to interview appellants' counsel. They both made
statements which were recorded in the form of draft affidavits. When these were
submitted to Mpanza and Makhanya they refused to
sign them. Their explanation
was that their families had brought pressure to bear on them not to become
involved in the matter for
fear of
repercussions/
12. repercussions.
Counsel for the appellants contended that if the matter
were to be remitted to the trial court the attendance of Mpanza and Makhanya
could be ensured by the issue of a subpoena. That, in my view, still leaves a
question-mark on whether these reluctant witnesses
will, if compelled to attend
and testify, adhere to what they told counsel. However, the real difficulty in
the way of the application
appears to me to be that even if Mpanza and Makhanya
were to give evidence in accordance with what they told counsel, it will not
assist the appellants. According to the document prepared for signature by
Mpanza, he was the
owner/
13.
owner of the kraal at which the soccer players
and members of the club met
during the night in
question. The appellants were also present as
supporters. The draft goes on -
"7. Zimu and Khwela also slept in a hut at my place, and although I cannot
specifically say that I saw them actually go to sleep,
I know that they were
with us when we were preparing to go to sleep. We went to sleep between 10 p m
and 10.30 p m.
8.
The persons who slept over
at my place were not only players, but some supporters were allowed to stay with
the players for the night.
9.
I know a person
by the name of Siphiwe Gumede. He was present at the camp that night, but if I
remember correctly, Siphiwe left during
the
night.
10. I woke at about 6 o' clock the following
morning. Both Zimu and Khwela were in
the/
14.
the hut when I awoke."
In the document prepared for signature by
Makhanya
it is recorded that he was also at Mpanza's kraal.
It goes on
-
"4. The accused persons in this case, Zimu and Khwela were present at
Mpanza's kraal as supporters.
5. When we went to sleep in a hut
Zimu and Khwela were with us, and the next morning they were still with
us."
It will be seen that if Mpanza
and Makhanya were to testify in accordance with
what they informed
counsel, they will not be able
to exclude the possibility that the appellants
did
exactly that which they said in their evidence
they/
15. they did, viz leave Mpanza's kraal at some time during the
night or early hours of the morning, and return before the others at
Mpanza's
kraal woke up. It seems to me that to remit the case to enable the appellants to
call Mpanza and Makhanya will be an exercise
in futility, and that the
application should be dismissed.
I return to the arguments presented in the appeal.
Counsel submitted that it was doubtful whether the circumstances for
identification as described to the court a
quo
were adequate. The
attackers could only be seen in the light of a candle
which/
16. which was inside the house at a stage when they were about
one and a half to two metres away from the partly open door of the
house. There
does not however seem to me to be any reason to doubt the positive evidence of'
Ntombenhle that the light was adequate
and the attackers sufficiently close to
enable her to identify them. Counsel placed emphasis on the shortness of time
for identification,
but I think that since the assailants were well known to
Ntombenhle, even a brief glimpse would have been adequate. It was contended
that
Ntombenhle was probably horror-stricken; that however does not seem to me to be
a reason to question her powers of observation.
It was urged that Ntombenhle
contradicted
herself/
17.
herself; she at one stage said that when
the
attackers were at the door she was carrying a
candle, but under
cross-examination she stated
that the candle was on a table near the door
of
the kitchen. I do not discern a real contradiction.
The candle may at
one stage have been on the table and
at another stage in her hand. It was in
any event
clearly established that there was a burning candle
on the table
in the kitchen. That was proved by the
unchallenged evidence of Nompumelelo,
who said that
earlier during the night she lit the candle when she
went to
urinate, and left it burning. If Ntombenhle made
a mistake in saying that she held the candle while it
was/
18.
was in fact on the table, it was of no
consequence.
In regard to the finding of the trial court that
Ntombenhle would not have
known that the two appellants
were together in each other's company that
night,
counsel urged that the evidence indicated that they
on previous
occasions came together to her parent's
house to drink. I think, however,
that the court
a
quo
rightly held that the evidence of Vusumuzi
clearly brought
out that when the two appellants came
to the Luthuli house, they were not always in each
other's company. The point made by the trial court
was, in my opinion , a valid one.
It was next contended that the
trial/
19
trial court should not have placed reliance on the voice
identification by Vusumuzi in the absence of evidential material to indicate
that it was reliable. I think it is correct that that part of Vusumuzi's
evidence was presented somewhat sketchily. He should at
least have been asked
whether there was anything special about the voice of the second appellant which
caused him to recognise it,
and if so, what it was (c.f.
R v Chitate
1966(2) S A 690 (R., AD) at p 692 B-E;
S v M
, 1972(4) S A 361(T) at p.
365 A). In the absence of a more specific and detailed enquiry about these
matters Vusumuzi's evidence
has but limited value. It seems to me however that
in the light of all the
other/
20. other matters supportive of the evidence of Ntombenhle there
was good reason to accept it even though the reliance by the court
on the
evidence of voice identification was questionable.
The impression of the
trial court of Ntombenhle as a bright intelligent child is in my opinion borne
out by the record of her evidence.
Her responses to questions seem to me to be
entirely adequate, and she displayed a reasonably intelligent appreciation of
what was
going on. Her evidence was "of a simple kind", and related "to a
subject matter clearly within the field of (her) understanding and
interest"
(c.f.
Rex v Manda
1951(3) S A 158 (AD) at p. 163 B). I am
not/
21.
not persuaded that the court a quo erred in
accepting
her evidence.
Counsel for the appellants(rightly in my view)
forebore any criticism of the conclusion reached by the trial court that the
evidence
of the appellants stood to be rejected.
1 do not think that there is any ground for interfering with the finding that
it was established beyond reasonable doubt that the
appellants were the two men
who murdered the deceased. It was not contended that the court a quo should have
found that there were
extenuating circumstances. In my view the appeals have no
merit.
The/
22.
The following orders are made -
(a) The applications to set the conviction and
sentence aside and to have
the matter remitted to
hear the evidence of Themba Mpanza and
Dumisani
Makhanya, are dismissed.
(b) The appeals are dismissed.
ELOFF, AJA
JANSEN JA )
JOUBERT JA ) CONCUR
WESSELS AJA )
GALGUT AJA |