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[1999] ZAWCHC 4
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Vuso v S (SS82/1998) [1999] ZAWCHC 4 (25 February 1999)
IN
THE HIGH COURT OF SOUTH-AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
SS82/1998
DATE
:
25
FEBRUARY 1999
In die case between:
VISUMZI
BATATA VUSO
…...................................................................
Applicant
and
THE
STATE
…..................................................................................
Respondent
JUDGMENT
(Application
for Leave to Appeal)
BLIGNAULT.
J
:
In
this matter I handed down judgment on 16
th
February
1999. Vusumzi Batata Vuso, (accused 4) was convicted on the first
count - that is the killing of Ms Gretha Bloomfield -
on the second
count - that is housebreaking with intent to steal, and on the fourth
count, theft. Accused 4 was sentenced to a
period of imprisonment of
sixteen years on the first count and a period of four years
imprisonment on the second and fourth taken
together.
Accused
4 now applies for leave to appeal to the full bench of this court
against his conviction on the first count. A notice of
application
for leave to appeal was filed on his behalf. Grounds of appeal are
set out therein as follows: The appeal is said to
be based on the
following grounds:
1.1
that the court erred relying upon accused 2's evidence to found to
conviction and in not rejecting the entirety of the evidence
of
accused 2 as unreliable;
1.2.
finding that there existed a body of reliable corroborative evidence
against applicant;
1.3.
finding that it had been proved beyond reasonable doubt that
applicant had had blood on his shoes and that the evidence of
accused
2 Mgqatsa and accused 2's father were corroborative in regard to
this;
1.4.
finding that the evidence of Mgqatsa could be relied upon to
establish that applicant had blood on his shoes;
1.5.
relying upon Tabatha's evidence that she had allegedly been given the
wedding band by applicant in circumstances where this
witness had
demonstrated herself to be untruthful and unreliable;
1.6.
relying
upon the evidence of accused 3 as to
applicant's alleged reaction
in the taxi as to utterances regarding the deceased in circumstances
where accused 3 demonstrated himself
to be an unreliable witness and
where none of the other occupants in the vehicle corroborated this
evidence;
1.7.
finding that applicant's evidence in its totality warranted
rejection;
1.8.
finding that applicant had lied in his evidence and that this
justified an inference as to his guilt;
1.9.
accepting that the cautionary rule in respect of the evidence of a
single witness had been satisfied in regard to the evidence
of
accused 2.
Mr
Webster
,
counsel for accused 4, appeared on his behalf at the hearing of this
application. In his argument he advanced various contentions
in
amplification of the proposed grounds of appeal as set out in the
notice of application for leave to appeal.
In
considering whether another court could reasonably come to another
conclusion in regard to the guilt of accused 4 in respect
of the
killing of Ms Bloomfield, it is necessary, I think, to view the
evidence against him in a proper perspective. In summary
one can
group this evidence in three categories. First of all there is the
evidence of accused 2. Accused 2 is found by this court
- and that is
quite clear from his version - fully implicated accused 4 in the
killing. Now criticism has been raised by Mr
Webster
in
his argument both at the hearing at the end of the matter and again
in his argument for leave to appeal and it is so that in
certain
aspects accused 2's evidence is subject to criticism. Overall,
however, I must say that he did not make a bad impression
and the
court did get the impression that his version is broadly correct. As
stated in the judgment, however, it did appear that
he was - it
appeared very clearly - understating the degree of his own
involvement in the attack and by the same token he might
have
overstated the degree of the involvement of accused 4. However, on a
full conspectus of his evidence there is no doubt that
he implicates
accused 4 fully. However, it is obvious he is an accomplice and
therefore the court could not convict on that evidence
alone.
,
The
second category of evidence and I call that a category because it is
really a number of items of evidence, are the various items
which
implicate accused 4, evidence given by the other witnesses. There is
the evidence of Mgqatsa and that of Mr Mamputa Senior
in regard to
the blood on his shoes. There is the evidence of Lindiwe Tabatha in
regard to the wedding ring and there is the evidence
of accused 3 in
regard to his utterance in the taxi after the event.
Now
clearly individual aspects of the evidence of these witnesses can be
criticised but and I think this is an important point,
any one of
these items of corroborative evidence would appear to be crucial and
of significant corroborative effect for example
if the evidence about
the ring is correct, then it would appear apart from anything else,
that accused 4 is crucially implicated
in the assault. Similarly if
he had blood on his shoes, then apart from any other evidence that
would show a crucial implication.
Thirdly, again the evidence of
number 3, although he is an accomplice, if his evidence on this
ground is accepted then that too
must weigh crucially against the
accused. Although it is possible that one of these witnesses might
have been mistaken or one of
them might be lying, it seems to me
highly improbable that a court could find that all these witnesses on
all these aspects, that
their evidence falls to be rejected.
That
brings me to the third category or the third factor against accused 4
and that is his own evidence and the fact that he was
found to be
untruthful in material respects. I may add that he did not make a
good impression as a witness. He was at times arrogant,
at times
evasive and he certainly created the impression that he was
fabricating a version in order to remove himself as far as
possible
from the scene of the crime.
Now
Mr
Webster
in
his argument referred in this regard to
S
v Mtsweni
1985(1)
590 (A) and more particularly at pages 593-594 where Smalberger,
Acting Appeal Judge, as he then was, discussed the question
of the
weight or the inferences to be drawn from untrue evidence given by an
accused:
"By
die beoordeling van leuenagtige getuienis deur 'n beskuldigde moet
daar onder meer gelet word op:
die
aard, omvang en wesenlikheid van die leuens en of hulle noodwendig
op 'n skuldbesef dui;
die
beskuldigde se ouderdom, ontwikkelings-peil, kulturele en
maatskaplike agtergrond en stand in soverre hulle 'n verduideliking
vir sy leuens kan bied;
moontlike
redes waarom mense hulle tot leuens wend byvoorbeeld omdat in 'n
gegewe geval 'n leuen meer aanneemlik as die waarheid
mag klink;
die
neiging wat by sommige mense mag ontstaan om die waarheid te ontken
uit vrees dat hulle by 'n misdaad betrek gaan word of
dat hulle
vrees dat erkenning van hulle betrokkenheid by 'n voorval of
misdaad, hoe gering ook al, gevare inhou van 'n afleiding
van
deelname en skuld buite verhouding tot die waarheid."
Mr
Webster
argued
in this regard that there could have been another reason for accused
4 lying about this event. As an example he suggested
that accused 4
might have been present in the house when the attack took place but
thereafter decided to place himself as remote
as possible from the
scene of the crime because perhaps he saw that as the safest way of
defending himself.
In
the circumstances of this case however I do not find this argument
convincing. If indeed accused 4 was innocent then in this
case where
accused 2 then on that hypothesis falsely and wrongly implicated him
in this crime, then I would have thought that there
would have been
every reason for accused 4 to tell the truth and to clarify his own
position in order to establish his own innocence.
Therefore
even having regard to all the factors mentioned by Smalberger AJA, as
he was in the
Mtsweni
case,
I do not think that there is a reasonable possibility of another
court coming to a different conclusion or drawing a different
inference from the fact that accused 4 was not a truthful witness.
In
the result I do not think that another court or there is a reasonable
possibility that another court could come to a different
conclusion
in regard to the conviction of accused 4.
THE
APPLICATION FOR LEAVE TO APPEAL IS ACCORDINGLY DISMISSED.
BLIGNAUT,
J