Mkhize v S (AR 179/06) [2009] ZAKZPHC 36 (5 August 2009)

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[2009] ZAKZPHC 36
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Mkhize v S (AR 179/06) [2009] ZAKZPHC 36 (5 August 2009)

IN THE KWAZULU NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 179/06
In the matter between:
LANGA MKHIZE
APPELLANT
and
THE STATE
RESPONDENT
APPEAL
JUDGMENT
Delivered
on 05 August 2009
_______________________________________________________
SWAIN J
[1] The appellant
appeals against his conviction on one count of
murder, one count of
attempted murder, two counts of kidnapping and one count of common
assault, leave having been granted by Moleko
J, who confirmed the
conviction of the Regional Court, the matter having been referred to
the learned Judge for sentencing in terms
of
Section 52
(1) (b) of
the
Criminal Law Amendment Act No. 105 of 1997
.
[2] The appellant was
sentenced to ten years’ imprisonment for murder, two years of which
were suspended for five years on
conditions, five years in respect of
the count of attempted murder and one of the counts of kidnapping
(taken together for the
purposes of sentence) three years in respect
of the other count of kidnapping and a fine of R300.00 in respect of
the count of
common assault. The appellant was therefore sentenced
to an effective term of eight years’ imprisonment, against which no
application
for leave to appeal was lodged.
[3] The co-accused of
the appellant did not challenge his conviction on the counts of
murder, attempted murder and kidnapping
for which he was sentenced to
an effective term of imprisonment of six years.
[4] What is not
disputed by the appellant is that on 29 December 2003, he together
with his co-accused and one Mfunwa Khuzwayo,
travelled to the homes
of Siyabonga Mkhize (the complainant on the count of attempted
murder) and Thembowake Mkhize (the deceased
on the murder count) and
caused them both to accompany the appellant and his companions,
firstly to the homestead of the said Mfunwa
Khuzwayo, and thereafter
to the homestead of one Sihle. Whether Siyabonga Mkhize and the
deceased accompanied the appellant voluntarily,
or were compelled to
do so, forms the subject matter of the two counts of kidnapping. The
object of the exercise was to arrest
Siyabonga Mkhize and the
deceased, as suspects in an incident where two female teachers were
robbed and one of them was raped.
This incident occurred at the
homestead of Mfunwa Khuzwayo and they were taken there with the
purpose of questioning them both
to ascertain exactly what roles they
had each performed in this incident.
[5] The crucial issue
is whether the appellant and his co-accused beat the deceased and
Siyabonga to extract this information,
as contended for by the State,
or whether the deceased and Siyabonga were beaten by members of the
community at Sihle’s home,
in the absence of the appellant, as
contended for by the appellant.
[6] The main argument
advanced by Mr. Manikam, who appeared for the appellant, was that the
evidence of Siyabonga Mkhize as
to the assault by the appellant upon
the deceased and himself, was incorrectly relied upon by the
Magistrate, as he was a single
witness in respect of most of the
duration of the assault. Mr. Manikam also drew our attention to what
he submitted were aspects
of his evidence which militated against the
Magistrate placing reliance upon his evidence.
[7] What this argument
overlooks is that the version of the appellant is that at no stage
did he assault either the deceased,
or Siyabonga. The evidence of
Siyabonga that the appellant assaulted the deceased was supported by
the evidence of Sizeni Mkhize
(the mother of the deceased), Mqedeni
Mkhize (the father of the deceased) as well as Thulisile Mkhize (the
sister of the deceased).
The fact that they were not present during
the course of the entire assault matters not. Their evidence
contradicts the evidence
of the appellant that he never assaulted the
deceased at any stage.
[8] Mr. Manikam has
drawn our attention to certain shortcomings in the evidence of the
family members of the deceased, which
we have carefully considered.
Due regard being paid to these aspects, the only basis upon which
their evidence that the appellant
assaulted the deceased can be
rejected in its entirety, is if it is found that they have conspired
to falsely implicate the appellant.
The evidence of the appellant
was that certain members of the community, whom he named, were
responsible for the death of the
deceased and the attempted murder of
Siyabonga. This was denied by all of these witnesses. The question
therefore has to be posed,
why would these witnesses falsely
implicate the appellant in the death of the deceased when the true
perpetrators of the crime
were known? Mqedeni Mkhize in fact stated
that there were members of the community present when the appellant
was assaulting the
deceased, who were crying and asking
“why
is the child being killed”.
A further question which has to be posed is why would these
witnesses, who were present when the members of the community were
at
the scene, seek to falsely implicate the appellant, when on the
appellant’s version he was not even there and these witnesses
would
have seen the members of the community named by the appellant,
assaulting the deceased?
[9] I find it grossly
improbable that these witnesses, who on the appellant’s version
must have been aware of the identity
of the perpetrators of the
assault upon the deceased and Siyabonga, would seek to shield these
individuals and falsely implicate
the appellant. When I asked Mr.
Manikam what motive these witnesses could possibly have to falsely
implicate the appellant, he
submitted that it was because the
appellant had arrested the deceased and Siyabonga and was therefore
responsible for what ultimately
occurred. I do not regard this
explanation as plausible, particularly as it offers no reason why
they would be prepared to allow
the guilty parties to go free at the
expense of the innocent appellant.
[10] Weighed against
the evidence of these witnesses are a number of glaring
improbabilities in the evidence of the appellant.
[11] The appellant
agreed that as Chairperson of the Community Policing Forum he was
going to do everything in his power to make
sure that the people who
committed these crimes were brought to book, he was unhappy that the
charges were withdrawn against the
particular persons involved and he
together with the victims, felt passionately about making sure that
these people got what they
deserved. He agreed that he, as
Chairperson, was going to ensure that the persons who were suspected
of committing these crimes
were brought to book. He also said that
Mfunwa Khuzwayo was told by the police to go and look for the
suspects themselves when
they told the police who the suspects were.
What was expected of him was to
“get”
the suspects and take them to the police station, but he agreed that
he did not possess the power to arrest individuals.
[12] When asked why he
did not take the suspects to the police station immediately after he
had
“arrested”
them, but proceeded instead to the house of Mfunwa Khuzwayo where the
incident occurred, he said that they wanted to be sure of
what had
happened and that their explanation as to what role each had played,
accorded with what the victims had to say. According
to the
appellant, both suspects simply agreed they had committed the
offences complained of.
[13] According to
Mfunwa Khuzwayo however, the reason why the suspects were taken to
his home, was because one of them was denying
the allegation and one
of them was admitting the allegation. He only wanted to call the
police when he was sure whether they had
the
“wrong
people or right people”
.
He also said they did not immediately take them to the police
station
“because the
police said they can’t arrest people if they have no physical
evidence so that is why we didn’t call the police
by that time we
wanted to take them to
the place where the
goods were kept, the stolen goods were kept, then call the police in
order to tell them that here are the suspects
and the stolen goods”.
[14] I regard it as
grossly improbable that the suspects would simple confess to the
crime without any compulsion, particularly
as Mfunwa Khuzwayo
contradicts the appellant’s evidence in so far as he says that one
of the suspects denied the allegations.
I also regard it as grossly
improbable that the purpose in conveying the suspects to the scene of
the incident, was simply to
ascertain the roles each of the suspects
had played. The object was obviously to get the suspects to reveal
the existence of physical
evidence because without such evidence,
according to Mfunwa Khuzwayo, the police would not arrest them.
[15] The appellant’s
assertion that neither of the suspects were assaulted at Khuzwayo’s
house is contradicted by the evidence
of accused No. 2, who stated
that he heard the sound of somebody crying within the house and he
thought somebody was being hit.
He entered the house and saw Mfunwa
Khuyzwayo standing and the two suspects lying on the floor.
Appellant was present in the
house. Thereafter he saw the appellant
carrying a stick, which the appellant said had been used during the
incident when the teachers
were raped and robbed. When it was put to
accused No. 2 that the evidence of the appellant was that nothing
occurred at the time
he said there was screaming, his response was
that the appellant was lying. The evidence of accused No. 2 must be
approached with
caution because it is clear that he attempted to
minimise both his role and that of the appellant in the proceedings.
However,
as regards the events at Khuzwayo’s house, his evidence
that the suspects were assaulted there is consistent with the
evidence
of Thulisile Mkhize. Accused No. 2 confirms her evidence
that she arrived at the house. Thulisile stated that she saw accused

No. 2 outside the house and then saw the appellant inside the house,
assaulting the deceased by striking him on the head with a
stick.
The deceased was crying at the time.
[16] As pointed out
above, the version of the appellant is that the deceased and
Siyabonga were assaulted by members of the community
in his absence.
His absence was caused by the owner of the vehicle he had used to
convey the suspects, requesting its return.
The owner did this by
sending a child to Mfunwa Khuzwayo’s home asking for the return of
the vehicle. Accused No. 2 however
denied that any child came to the
house because as he put it
“but
it is me
who
was outside who was supposed to see everything”
and agreed that evidence to the contrary would be lies. He also
disputed the evidence of the appellant that the appellant left
the
suspects at Sihle’s house and immediately left. According to
accused No. 2 the appellant also alighted and was part of the

discussion with Sihle’s mother and spoke to members of the
community who were present. Accused No. 2 denied however that the

suspects were assaulted at Sihle’s home and stated that they were
only assaulted at Khuzwayo’s house. If accused No. 2 wished
to
implicate the appellant he could quite easily have alleged he saw the
appellant assaulting the suspects at Sihle’s house,
as attested to
by the other witnesses. Why would he falsely wish to place the
appellant on the scene at Sihle’s house, and deny
that any child
arrived at Khuzwayo’s house to cause appellant to leave Sihle’s
house, and yet deny that anybody, including
the appellant, assaulted
the suspects in his presence at Sihle’s house? In my view, the
evidence of accused No. 2 in this regard
has the ring of truth.
[17] The evidence of
Inspector Dludla that the appellant was threatening people present at
the scene that if they talked to the
Inspector they would have a
problem, I regard as of significance. Why would the appellant behave
in such a fashion unless he had
something to hide? Although the
appellant denied behaving in such a manner, and said that Inspector
Dludla was lying, he never
suggested any reason why he would do so.
Asked when giving evidence in chief to substantiate why the Inspector
was not telling
the truth, he simply said that he, i.e. the
appellant, was at another house when the police van arrived and he
then
“came down”.
[18] Of great
significance is the appellant’s attempt to explain why he never
gave the police the names of the individuals,
whom he saw were armed
with sticks standing in the vicinity when he returned and found the
suspects had been assaulted. The appellant
said the police never
asked him about this and then said that it never occurred to him that
they were involved in the assault.
It is quite clear the appellant
was dishonest in this regard.
[19] When all of the
evidence is considered, I am satisfied that the State proved beyond a
reasonable doubt, that the appellant
was party to a common purpose
with accused No. 2 and Mfunwa Khuzwayo to kidnap the deceased and
Siyabonga, and assault them to
obtain evidence of their involvement
in the rape and robbery of the teachers. In the course of executing
this common purpose the
deceased was killed and Siyabonga was
severely assaulted. It is unnecessary to determine who struck the
fatal blows because it
is trite that the one perpetrator’s act can
be attributed to the other members of the common purpose. It is
clear that the assault
upon both the deceased and Siyabonga was
prolonged and severe. In my view, the appellant foresaw the
possibility that the acts
of the participants with whom he associated
himself, as well as the assault he perpetrated upon the deceased and
Siyabonga, may
result in death and reconciled himself to that
possibility. The appellant was therefore correctly convicted of the
murder of the
deceased and the attempted murder of Siyabonga.
[20] As regards the
conviction on count 5, namely common assault perpetrated by the
appellant on Thulisile Mkhize, I am satisfied
that the appellant was
correctly convicted. In the light of the finding that he was present
at Sihle’s house, where Thulisile
came and tried to speak to the
deceased, and that the appellant was armed with the same stick that
she had seen in his possession
at Khuzwayo’s house, I have no
hesitation in rejecting the appellant’s denial of this assault as
not being reasonably possibly
true.
[21] I would therefore
propose that the appeal against the appellant’s conviction be
dismissed.
…………………
.
Swain J
I agree
…………………
.
Hollis A J
I agree and it is so
ordered
…………………
.
Nicholson J
Appearances/…
Appearances:
Counsel for the
Appellant :
Adv.
M. Manikam
Instructed by : David &
Co.
Stanger
Counsel for the
Respondent : Adv. M. G. Chetty
Instructed
by : Director of Public Prosecutions
Pietermaritzburg
Date of Hearing of
Appeal
: 28
July 2009
Date of Judgment
05
August 2009