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1986
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[1986] ZASCA 151
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S v Zwane (284/86) [1986] ZASCA 151 (28 November 1986)
Case No: 284/86
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION)
In the matter between:
QUALITY VUSI ZWANE
Appellant
and
THE STATE
Respondent
CORAM:
HOEXTER, JACOBS, JJA et NICHOLAS, AJA
HEARD
21 November 1986
DELIVERED:
28 November 1986
JUDGMENT
HOEXTER,
JA
2.
HOEXTER, JA
,
In the Circuit Local Division for the Northern
Circuit, held at Ladysmith, the appellant pleaded not guilty to a charge of
murder
(count 1), a charge of robbery (count 2), and a charge of murder (count
3). He was tried by a Court consisting of THIRION, J and
two assessors. The
appellant was represented by
pro Deo
counsel and at the close of the
State case he testified in his own defence. He was found guilty as charged. No
extenuating circumstances
were found in respect of the murder on count 1. In
respect of the murder on count 3 extenuating circumstances were found. On count
1 the appellant was sentenced to death. On counts 2 and 3 he was sentenced
respectively to two years and nine years imprisonment.
With leave of the trial
Judge the appellant appeals against the convictions on all three counts.
Some
3. Some 20 to 30 km from Ladysmith there is the rural residential
area of Matlwaneskop where the appellant's mother, Elsie Zwane,
has a kraal
("Zwane's kraal"). The appellant is a man in his thirties. He spent his youth at
Matiwaneskop but later worked for various
periods on the Reef. He appears to
have returned to Matiwaneskop in order to settle there during December 1980, and
for some time
thereafter he looked for work in Ladysmith. During the month of
May 1981 the appellant was sleeping at Matiwane's kraal but spending
most of his
days in Ladysmith. It is common cause that towards the end of May 1981 the
appellant travelled by train from Ladysmith
to Johannesburg; and that thereafter
he was not seen again in Ladysmith until the year 1985.
Early on the morning of Saturday 30 May 1981 the corpse of a black man (one
Mateu Makuluzu) was discovered in a donga which lies some
800m from Zwane's
kraal. Makuluzu's death had been caused by a stab-wound to the chest. The
State
4. State case is that the appellant murdered and robbed Makuluzu
at the donga during the night of Friday 29 May 1981. Crucial to counts
1 and 2
is the precise date of the train journey to Johannesburg undertaken by the
appellant at the end of May 1981. The State case
is that the appellant did not
leave Ladysmith until Saturday 30 May. The appellant's version is that he left
Ladysmith by train on
Friday 29 May. Some 1 /2 km distant from Zwane's kraal
there is to be found Twala's kraal. Here there lives a young woman called
Thandi
Twala. Thandi and the appellant had once been lovers, but by September 1985
Thandi had a new lover, a man called Khoza. Thandi
last saw Khoza alive at
Twala's kraal during the evening of 5 September 1985. Early on the morning of 6
September Khoza's dead body
was found lying in a pool of blood at a spot some
40m from Twala's kraal. He had been stabbed in the face, neck and chest, the
cause
of death being penetrating chest-wounds. Specks and trails of blood
discovered in the immediate vicinity suggest that the fatal
attack
5.
attack took place some 20 or 25 paces away from the spot at
which Khoza's body was found. The State case is that Khoza was thus fatally
wounded on the evening of 5 September 1985,
shortly after Thandi had last seen him alive; and that his attacker was the
appellant.
A man called Themba Sithole was the chief witness in regard to counts 1 and
2. Sithole grew up at Matiwanes= kop and he was living
there in May 1981. He
claimed that the appellant was well-known to him. After work on an afternoon
towards the end of May 1981, so
testified Sithole, he boarded in Ladysmith a
taxi bound for Matiwaneskop. The passengers in the taxi included the appellant.
The
taxi's last three passengers alighted at a spot some ,5 km from the donga in
guestion. These three were Sithole, the appellant and
a black man whose identity
was not known to Sithole. The stranger carried a paper bag. It was then already
dark. The three men walked
together until they
came
6.
came to the donga where, according to Sithole, the appellant stabbed the
stranger in the chest. The stranger fell to the ground whereupon
the appellant
first removed the contents of the paper bag, which he handed to Sithole, and
thereafter proceeded to remove money from
the stranger's pockets. The appellant
then suggested that Sithole should accompany him to Zwane's kraal and spend the
night there;
and that on the following day they should travel by train to the
Reef. At the insistence of the appellant Sithole went with him to
his room at
Zwane's kraal and slept there. On the next day they went into Ladysmith and the
appellant gave Sithole R10 for his train
fare. Sithole explained, however, that
he had had no intention of travelling to Johannesburg. At the Ladysmith railway
he managed
to slip away from the appellant. On the following Monday he went back
to his place of employment in Ladysmith. Sithole failed to
report to the police
the murder and robbery that he had witnessed. Some
suspicion
7.
suspicion that he had been involved in the matter nevertheless fell upon
Sithole, and some days later he was arrested at his place
of work on a charge of
murder. Following a statement made by him he was later released.
The appellant's mother, Elsie Zwane, was a witness for the prosecution. She
remembered a Saturday on which the news reached her that
a dead body had been
found in a donga at Matiwaneskop. On the Friday night immediately preceding the
Saturday in question she was
in bed when she heard a noise in her yard. She
looked out of her window and in the yard she saw two men walking towards the
appellant's
room. The one was a stranger to her but she recognised the other as
her son, the appellant. Thus reassured she went back to sleep.
When she rose on
the Saturday morning the appellant and his companion had already left the kraal.
She did not see the appellant again
until August 1985 when she met him by chance
in Ladysmith. Elsie Zwane told the Court
that
8.
that on previous occasions when the appellant left her kraal to travel ,to
Johannesburg it had been his habit to inform her. of his
movements. On this
occasion he did not tell her of his intention so to travel.
In support of count 3 the chief witnesses called by the State were Thandi
Twala, a woman called Zensile Leteha, a schoolgirl called
Buyisele Khumalo, a
man called Roy van Niekerk, and the investigating officer in the case, Const.
Venter of the South African Police
at Elandslaagte. Zenzile Leteha and Buyisele
Khumalo live at a kraal close to Twala's kraal at which Thandi lives. Zenzile
Leteha
told the trial Court that during the day of Thursday 5 September 1985 and
in Ladysmith the appellant asked her to deliver to Thandi
a message to the
effect that the appellant was coming to see Thandi. After dark on the same
evening the appellant arrived at the
home of Zenzile Leteha. He had with him a
large paper bag but she was unable to see what it contained. The
appellant
9. appellant asked Buyisele to fetch Thandi. Buyisele
went
off on this errand and on her return she reported that Thandi
had refused to come. The appellant remained sitting quietly at Zenzile's home
for an hour or two and then left. Buyisele, a standard
nine pupil, recalled the
precise date of the appellant's visit and confirmed that at the
appêllant's request she had gone to
Thandi. She told Thandi that a male
visitor was waiting for her at Zenzile's home but Thandi said she was busy.
Buyisele went back
and reported Thandi's reaction. Buyisele also said that the
appellant was carrying a large paper bag. The effect of Thandi's evidence
is the
following. In August 1985, many years after she had broken off her relationship
with the appellant, he visited her at Twala's
kraal. He told her that he wished
to set up a kraal for himself and Thandi, and to find work. In response to this
suggestion Thandi
remained silent. She saw the appellant again in September 1985
on the night before the day on which Khoza was found dead. She was
having a
conversation with
Khoza
10. Khoza in front of her home when the appellant
arrived. Wrapped around him was a blanket underneath which he was carrying a
cane
knife. In an aggressive fashion the appellant demanded to know who the
person was with whom Thandi was speaking. From his manner
of speech Thandi
thought that the appellant had been drinking. Thandi replied that Khoza was her
boy-friend. Thereupon Khoza walked
away. After a brief interval of time during
which the appellant kept asking "Who is this person you have been standing
with?", the
appellant ran off in the direction in which Khoza had gone. It was
dark and she was not able to see where Khoza had gone. Thandi
remained standing
at the same spot for some time but heard nothing. Thandi admitted that when she
was first approached by the police
after Khoza's death she disavowed any
knowledge of the matter. She explained that her initial response was inspired by
a fear of
reprisals from the appellant.
During
11.
During the latter half of September 1985 the appellant was being detained in
the Ladysmith gaol in connection with some other matter.
During the same period
Van Niekerk was also a prisoner at the gaol. Van Niekerk is a coloured man. He
testified that for a day or
two he and the appellant had been cell-mates at the
gaol. According-to Van Niekerk the appellant told him in gaol that it was being
alleged that he had killed a person at Matiwaneskop; and he asked Van Niekerk to
testify on his behalf and to say that the appellant
had been in Van Niekerk's
company on the evening of 5 September. Van Niekerk was released from the
Ladysmith gaol on 26 September
1985. On the same date Const. Venter took the
appellant from the gaol and asked him where he had been on the evening of 5
September
1985. The appellant replied that he had been working at the Crown
Hotel in Ladysmith. Having made inquiries at the said hotel Const.
Venter told
the appellant that he had established that
the
12. the appellant had in fact been discharged
from his employment at the hotel at noon on 5 September 1985, whereupon the
appellant
claimed that during the afternoon and evening of 5 September he had
been in the company of Van Niekerk; and that he had spent the
night at Van
Niekerk's house in Ladysmith.
When the appellant testified he denied any knowledge of the crimes with which
he was charged. He told the trial Court that he had
left Ladysmith for
Johannesburg by train at 10 pm on Friday 29 May 1981. In Johannesburg he
had stayed with a relative at Fordsburg when, in respect of some other
alleged offence he was arrested, charged, convicted and gaoled
for four years.
Upon his release from prison he returned to Ladysmith in June 1985. In regard to
counts 1 and 2 the appellant said
that Sithole was a complete stranger to him
and that the evidence of his mother was untrue. In regard to count 3 he,denied
that he
had been anywhere near
Zensile
13. Zensile or Buyisele or Thandi on the night of 5 September
1985. He said that Khoza was completely unknown to him. On 5 September
1985, so
testified the appellant, his services at the Crown Hotel were terminated at
about 12.30 pm; and in the afternoon he met
Van Niekerk with whom he spent the
rest of the day drinking. After dusk he accompanied Van Niekerk to the latter's
home in Ladysmith
and there he remained until the next day. The appellant denied
that he had met Van Niekerk in gaol and he described Van Niekerk's
evidence as a
pack of lies.
In weighing the evidence against the appellant the trial Court bore in mind
that in relation to the events at the donga on the evening
of 29 May 1981
Sithole was a
single witness. Moreover it treated his testimony -
"....with the same caution with which we would
have treated his evidence if he had been an accomplice."
In
14.
In its judgment the trial Court gave detailed consideration
to the credibility and the reliability of every witness in the case. It
believed
the evidence of Sithole and Elsie Zwane, and the learned Judge pointed out that
the evidence of the latter that she had
seen the appellant at her kraal in the
company of another man on the night of 29 May 1985 provided some support for the
evidence
of Sithole. The trial Court recorded its impression that Sithole was a
rather subdued person whereas the appellant seemed to be "a
far more forceful
type of person." The witness Thandi Twala appeared to the trial Court to be "a
somewhat reticient witness". However,
commenting upon Thandi's initial denials
to the police the learned Judge correctly pointed out that if this witness had
wished falsely
to saddle the appellant with responsibility for Khoza's death she
could easily have implicated him more directly than she in fact
did. The trial
Court described Zenzile Leteha and Buyisele Khumalo as excellent witnesses; and
it accepted the evidence of
Thandi,
15. Thandi, supported as it was by the evidence of Zensile and
Buyisele. It also accepted the evidence of Van Niekerk and Const. Venter.
The
appellant, on the other hand, was found by the trial Court to be a bad and lying
witness. On counts 1 and 2 the trial Court rejected
as false the appellant's
denial that he knew Sithole and that he had been in Sithole's company on the
night in question; and it accepted
as the truth Sithole's version that the
appellant murdered and robbed the stranger who had alighted from the taxi with
them. The
trial Court likewise rejected as false the alibi set up by the
appellant on count 3.
Before this Court counsel for the appellant conceded that in regard to the
events both of 29 May 1981 and 5 September 1985 the alibi
raised by the
appellant was palpably false; and in his attack upon the validity of the
conclusions reached by the trial Court he
contented himself with two brief
submissions. While recognising that the
trial
16. trial Court had displayed caution in assessing the worth of
Sithole as a witness, counsel urged upon us that the learned Judge
had
nevertheless not been sufficiently critical of Sithole. I am unable to accept
that submission. A careful reading of the record
entirely bears out the
impression recorded by the trial Court that Sithole was a good and frank
witness. Such imperfections as are
to be found in his evidence are trivial and,
in any case, the trial Court took notice of them. That Sithole did not report
the matter
to the police may reflect adversely upon his sense of civic duty but
it neither renders his account of what happened at the donga
less probable nor
points to any proclivity on his part for lying. By the end of the trial the
falsity of the appellant's alibi in
regard to counts 1 and 2 had been completely
exposed. In consequence there was no acceptable evidence to gainsay the
eye-witness
testimony of Sithole. In my opinion no good grounds exist for
doubting the correctness of the convictions of the appellant
on
17. on counts 1 and 2.
Dealing with count 3 counsel for the appellant contended that while all the
proven facts were no doubt fully consistent with the appellant's
guilt, they did
not exclude as a reasonable possibility that Khoza had fallen victim to some
assailant other than the appellant.
I cannot agree. Khoza walked away from
Thandi and the appellant. Very soon thereafter the appellant ran after Khoza.
The inference
that within a very short distance the appellant overtook Khoza is,
so I consider, an irresistible one. In this connection the following
remarks in
the judgment of the Court below are pertinent:-
"Not only did the Accused not take the Court into his' confidence about what
he did after he left Thandi, but on the contrary he devised
the most elaborate
lie to prove that he was not anywhere near Matiwaneskop on the evening in
question."
The
18.
The appellant obviously bore Khoza ill-will, and he was armed
with a lethal sharp instrument. The place at which Khoza was stabbed
to death
was a very short distance from where Thandi had been left standing. Looking at
the totality of the proven facts the suggestion
that Khoza's attacker may have
been somebody other than the appellant stánds to be rejected outright as
groundless and fanciful
conjecture. In my judgment the trial Court was rightly
convinced that no such reasonable possibility existed.
The appeal is dismissed.
G G HOEXTER, JA
JACOBS, JA )
Concur NICHOLAS, AJA )