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[2024] ZAKZPHC 43
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Mkhwanazi v S (AR 309/2021) [2024] ZAKZPHC 43 (24 May 2024)

FLYNOTES:
CRIMINAL
– Identity –
Alibi
defence
–
Attack
and burning of dwellings at night – Appellant convicted in
Regional Court – Lengthy silence of two witnesses
as to
identity remained unexplained – One witness had brief
glimpse in moonlight – Other witness was 70 metres
away at
night in conditions of smoke from burning dwellings –
Appellant advanced his alibi, underwent cross-examination
and
called his witnesses, who confirmed his alibi and withstood
cross-examination – Appeal allowed and conviction and

sentence set aside.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Appeal
no:
AR 309/2021
In
the matter between:
LINDOKUHLE
MKHWANAZI

APPELLANT
and
THE
STATE

RESPONDENT
Coram:
Balton J and Mossop J
Heard:
10 May 2024
Delivered:
24 May 2024
ORDER
On
appeal from:
Mtubatuba Regional
Court (sitting as the court of first instance):
The appeal is upheld and
the conviction and sentence are set aside.
JUDGMENT
MOSSOP
J (Balton J concurring)
:
[1]
The meaning of the Latin word ‘alibi’ is:
‘
elsewhere, other
where, somewhere else, in, or at another
place.’
[1]
The
appellant raised such a defence, unsuccessfully, to the five counts
that he faced when he stood trial in the Mtubatuba Regional
Court.
Those five counts comprised of three counts of murder, a count of
arson, and a count of attempted murder. He was convicted
on all the
counts and sentenced to an effective 30 years’ imprisonment. He
appeals against both his conviction and sentence
with the leave of
the trial court.
[2]
The facts of the matter are horrific. At around 20h00, on the evening
of 29 October 2016, the extended Gumede family were at their
homestead, which comprised of six dwellings. Three younger members
of
the family, namely Sifiso Nkosi (Sifiso), Njabulo Sithole (Njabulo),
and Mbekezeli Mtshali (Mbekezeli), occupied one of those
dwellings,
together with their grandfather, Thengabantu Gumede (the
grandfather). The four of them were in bed with the electric
light
switched off, and were talking in the dark before dropping off to
sleep, when the locked door to the dwelling was unexpectedly
kicked
in. An unknown number of people entered the dwelling in the dark and
began assaulting Sifiso and the other occupants, initially
with
stones. The room was then sprayed with petrol and the dwelling was
set alight. Njabulo and Mbekezeli, who I shall refer to
collectively
as ‘the young men’, managed to get out of the burning
dwelling through a window and fled in different
directions. Sifiso
and the grandfather were not as fortunate, and perished in the
burning dwelling.
[3]
Besides the dwelling occupied by the young men, two other dwellings
in
the homestead were torched by the attackers and the sister of the
grandfather, Ms Nyanyekile Gumede, a grandmother, was also burnt
to
death. The young men did not escape their burning dwelling unscathed:
Njabulo had his right foot burnt by the flames and Mbekezeli
was
struck in the head with a panga, causing a gaping wound that
ultimately required stitching and his hospitalisation for six
days.
[4]
The young men both
testified at the trial of the appellant. They were the only witnesses
called to testify about the events on the
evening of 29 October 2016.
It is therefore their evidence that the trial court relied upon to
convict the appellant and his co-accused.
[2]
In his evidence, Njabulo identified the appellant as being part of
the murderous group that descended upon the Gumede homestead.

Mbekezeli made a passing reference to the appellant in his evidence.
The appellant denied that he was at the Gumede homestead on
the
evening of 29 October 2016. The critical issue in this appeal is
accordingly that of identity.
[5]
Where
identification is an issue, the evidence that allegedly establishes
the identity of the person alleged to have committed the
crime should
be considered cautiously. The oft quoted words of Holmes JA in
S
v Mthetwa
[3]
remain apposite more than 50 years after he penned them:
‘
Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution. It is
not enough for
the identifying witness to be honest: the reliability of his
observation must also be tested. This depends on various
factors,
such as lighting, visibility, and eyesight; the proximity of the
witness; his opportunity for observation, both as
to time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility;
the accused's
face, voice, build, gait, and dress; the result of identification
parades, if any; and, of course, the evidence by
or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in a particular case, are
not individually
decisive, but must be weighed one against the other, in the light of
the totality of the evidence, and the probabilities…’
[6]
I turn to consider the evidence tendered by the State on the identity
of the appellant. The principal witness in this regard was Njabulo.
Njabulo stated that after he managed to escape from the burning

dwelling, he found his way to an area of the homestead that he
described as ‘the garden’, being an area where crops

would be planted when the growing season came around. He said that he
sat there and observed what was occurring. He then left that
position
and headed for a neighbouring homestead, being the Ngema homestead,
where a traditional police officer resided. Despite
he and Mbekezeli
having run in different directions, Njabulo came across the injured
Mbekezeli, and they both then proceeded to
the Ngema homestead
together. It appears that independently of each other, for on their
version they did not discuss it, they decided
not to disclose the
identity of their attackers to the neighbours because they believed
that the neighbours were related to their
attackers. When they
reached the Ngema homestead, the South African Police Services (the
SAPS) were summoned by the neighbours,
but upon their arrival, the
young men still did not disclose the identity of their attackers to
them. They did not make this disclosure
until eight and a half months
later.
[7]
During the course of his evidence in chief, Njabulo was asked the
following
convoluted question by the prosecutor:
‘
Okay,
before we go any further once inside the house – the people
that were inside the house, that broken open the door –
were
they known to you? Were you able to identify them, inside the house?
Okay, my question goes further: Inside the house, were
you able to
identify them? Inside the house?  ----  No.’
[8]
It was a poorly constructed question, but the answer is reasonably
clear
and certain. The attackers could not be identified by Njabulo
when they burst into the dwelling. That stands to reason: the attack

was entirely unexpected and occurred in the dark, it was a mobile,
fast moving scene, and, moreover, it must have been a singularly

terrifying experience.
[9]
It appears, therefore,
that Njabulo’s principal observations about the identity of the
attackers had to have been made after
he had escaped the burning
dwelling and had taken up a position in the garden. It was agreed
during the trial that this area was
approximately 70 metres from the
attacked homestead.
[4]
Asked by
the prosecutor in another convoluted question what assisted him to
make the identification at night, Njabulo stated:
‘
It
is the fire that assisted me to identify them because two grass
thatched houses had already been set alight.’
Where
those houses were situated relative to each other was never canvassed
at the trial. In addition, it was later established
that there was a
quantity of either grey or black smoke billowing from the burning
dwellings.
[10]
What was of importance is what Njabulo could see from his vantage
point. He stated the
following regarding his identification of the
appellant:
‘
He
was just standing, facing my grandmother’s house.’
That
response did not clarify whether Njabulo could observe the facial
features of the person that he identified as being the appellant.
He
explained further that he had made his observations over a period of
five minutes and that the appellant had been wearing a
blue two-piece
overall. Njabulo testified further that he knew the appellant, having
grown up in front of him.
[11]
Under cross-examination, Njabulo agreed with two propositions:
firstly, that he made his
observations from a considerable distance
(70 metres), and secondly, the conditions for making those
observations were not optimal
because of the presence of the smoke
from the burning dwellings.
[12]
There were aspects of Njabulo’s evidence that, in my view, were
unsatisfactory. He
contradicted his earlier evidence that he had been
seated in the garden when making his observations, when he agreed
with a proposition
put to him in cross-examination that he had, in
fact, been lying down. That appears to be more likely, for he would
surely be trying
to hide himself based on what had just occurred. But
that would also have changed his viewing perspective. In addition,
his evidence
on whether he had seen Mbekezeli being struck on his
head was equivocal and troubling. He initially said that he had not
seen it,
then said that he had seen it and, finally, conceded that he
had not seen it. When the statement that he had ultimately made to

the SAPS was proved and was put to him, it revealed that he had
stated that he had seen it. When asked to explain this, Njabulo
said
that he had seen it.
[13]
The second of the young men to testify at the trial was Mbekezeli. He
testified that whilst
in the dwelling:
‘
They
entered and assaulted Sifiso, who was on the bed.’
Asked
who had entered he answered as follows:
‘
I’m
talking about Thembinkosi Nkosi, Mdu Mkwanazi and Mdavu Mthethwa’.
It
was established that ‘Mdu Mkwanazi’ was a reference to
the appellant. The prosecutor put the following question to
Mbekezeli
and received the following response:
‘
Okay.
So you could identify them when they entered the house where you
were?  ----  I saw them when I was exiting to the
outside.
Mdavu appeared and came to me.’
[14]
Apart from that single reference to the appellant, Mbekezeli never
again mentioned his
name in his evidence in chief. In
cross-examination, he was asked how he managed to identify him in the
circumstances. Mbekezeli
stated that:
‘
I
managed to identify him because when they opened the door, there was
moonlight outside, emitting light to the house.’
Mbekezeli
was confident that there was sufficient light from the moonlight to
permit him to identify the persons in the split second
within which
they kicked down the door and entered the dwelling. However, his
opinion in this regard must be open to some doubt
because it was at
odds with his evidence in chief that he had only made this
identification when he was exiting the dwelling.
[15]
It
seems to me that the evidence of Njabulo is more likely to be
correct, namely that no identification was possible within the

dwelling. He made no mention of the moonlight. However, if, as
Mbekezeli testified, there was moonlight outside when the door to
the
dwelling was kicked in, whoever stood in the doorway would be
standing with the moonlight behind him. In other words, whoever
stood
in the aperture left by the open door would appear in silhouette.
[5]
It is doubtful that in such circumstances the identifying features of
the intruders would be capable of being discerned.
[16]
In argument, Mr Chetty, who appeared for the State, very fairly
conceded that the issue
of identification was of some concern in this
matter. He indicated that the young men only had a fleeting moment to
make their
respective observations. In my view, that was a proper
concession to make.
[17]
I turn now to consider the alibi defence raised by the appellant. The
appellant testified
and stated that on the day of the attack on the
Gumede homestead, he had been in Durban and had arrived in Hluhluwe
between 11h00
and 12h00. He was travelling with others but was the
first person to be dropped off at a place called Madulini to proceed
to his
homestead in the Dakaneni area. He arrived there at between
17h00 and 18h00, having had to walk a distance of about six to eight

kilometres from Madulini to Dakaneni. At his homestead, he had been
forced to remain in his grandmother’s dwelling because
of
stormy weather, in the company of his mother, the mother of his
children, and his brothers. He explained that one of the reasons
that
he had made the journey from Durban to his homestead was to see his
newly born child. At around 23h30, those in his grandmother’s

dwelling separated and went to their respective rooms. Before
separating, the appellant asked his mother to wake him in the
morning.
He spent the night in a room with the mother of his
children. Having retired to their room, the appellant slept on the
bed and
the mother of his children, identified as being Ms
Nompumelelo Dlomo (Ms Dlomo), slept on a sponge mattress on the floor
with the
young child, who was less than a month old at the time. His
mother did wake him the next morning at 04h00, but he was already
awake
when she telephoned him from her room. He then left the
homestead at about 04h30, en route back to Durban.
[18]
The appellant then called Mr Thanduxolo Thembinkosi Nkosi in support
of his evidence regarding
the journey from Durban. He confirmed the
appellant’s evidence, in particular, that he had been the first
of the travellers
to be dropped off. A cursory attempt at
cross-examination was made by the prosecutor but not much of
relevance emerged from this
brief exercise.
[19]
Ms Dlomo, the mother of the appellant’s children, also
testified in support of his
alibi. She testified that on 29 October
2016, she was at the appellant’s parental homestead in the
Dakaneni area. She estimated
that the appellant arrived there at
around 19h00. She described that day as being ‘the Sabbath’,
and stated that they
had all remained together until approximately
23h00. They then went to their room, and she spent the night on a
sponge mattress
on the floor. She confirmed that the appellant’s
mother had woken him the next morning.
[20]
When cross-examined by the prosecutor, Ms Dlomo said that she had
been telephoned by the
appellant’s attorneys to come and give
evidence. She had spent the night with the appellant before coming to
court to testify
and had travelled to court in the same motor vehicle
as the appellant. She confirmed that the appellant had been with them
at approximately
20h30 and confirmed, unsolicited, that there was
stormy weather that they were waiting to pass. In his evidence, the
appellant
had said that his intention that evening had been to watch
a soccer match on television. Ms Dlomo was asked if the appellant had

done so: she said that he had not because when there is stormy
weather about, they had been taught that the television was not
to be
switched on, a perfectly sensible answer.
[21]
The final witness called by the appellant in support of his alibi was
his mother, Ms Zandile
Mnikeziwe Mkhwanazi (Ms Mkhwanazi). She
testified that the appellant had arrived at her homestead at around
17h00 on 29 October
2016. The weather was thundering. She had been
cooking for the Sabbath. When retiring for the night at 23h00, the
appellant had
requested her to wake him early the next morning, which
she had done at 04h00. Under cross-examination by the State, Ms
Mkhwanazi
was asked how she knew the times that she mentioned. She
said that when she was asked by the appellant to wake him the next
morning,
she had accessed her cellular telephone to set the alarm for
the next morning and had seen the time. She estimated that the
appellant
had arrived at the homestead at the time that she stated
because she had commenced cooking for the Sabbath at about 18h00. Her
cross-examination was largely ineffectual.
[22]
It
is so that there is no onus on an accused to establish an alibi. It
is the task of the State to disprove it. In
R
v Mokoena
,
[6]
the court held that:
‘
If
the onus is upon the Crown to rebut the alibi, as it certainly is,
then the evidence as a whole must be considered and the fact
that the
accused and his witness told stories, which in some respects
disagree, does not mean that the Crown case has been proved
beyond
reasonable doubt.’
[23]
The
Supreme Court of Appeal in
S
v Musiker
[7]
observed that once an alibi has been raised, it must be accepted
unless it is proven that it is false beyond a reasonable doubt.
The
correct approach is to consider the alibi in the light of the
totality of the evidence presented to the court, as stated
in
Mokoena
.
In evaluating the defence of an alibi, in
R
v Hlongwane
,
[8]
Holmes AJA stated as follows:
‘
At
the conclusion of the whole case the issues were: (a) whether the
alibi might reasonably be true and (b) whether the denial of

complicity might reasonably be true. An affirmative answer to either
(a) or (b) would mean that the Crown failed to prove beyond

reasonable doubt that the accused was one of the robbers.’
[24]
It is so that the
appellant’s alibi was extremely simple and was supported, inter
alia, by the mother of his children and
his own mother. I do not lose
sight of the fact that both these witnesses may have an interest in
whether the appellant is incarcerated.
But the truth of the matter is
that if it was a contrived story, falsely put together to prevent the
appellant from being convicted,
then that was not demonstrated to be
the case by the State.
[25]
The regional magistrate found that there were shortcomings in the
evidence of Njabulo.
In that she was correct. She correctly
identified his unsatisfactory evidence relating to the wounding of
Mbekezeli. She then found
that the evidence of Mbekezeli had
corroborated Njabulo’s evidence and concluded that the evidence
tendered by the State
witnesses was credible and that those witnesses
were honest witnesses. I do not have any difficulty with the
proposition that they
were honest witnesses. Most witnesses who
testify are honest. The question is, more importantly, are they
correct in that to which
they testify? In convicting the appellant
and his co-accused, the regional magistrate found that they had
correctly described what
had occurred and who had committed the
crime.
[26]
I cannot share that certainty. The silence of the young men after
their terrible experience
remains unexplained. I cannot accept that
they both came to the same conclusion that they should remain silent
when arriving at
the Ngema homestead without previously discussing
their silence. They must have discussed the position for them to both
hold the
identical view. The regional magistrate found that their
explanation that they believed the occupants of that homestead were
related
to their attackers was sound. The trial court found that that
there was no evidence that the accused were not related to the
occupants
of the Ngema homestead. In fact, the appellant’s
legal representative was precluded from asking that question by the
trial
court. But the only evidence of this fact was the evidence of
the young men, and the basis for their supposition in this regard
was
never explored nor confirmed.
[27]
I have a further difficulty with the evidence of the young men. Their
explanation, which
was accepted by the regional magistrate, that they
did not mention the names of the attackers to the SAPS because they
were not
asked who had attacked the Gumede homestead, likewise cannot
be accepted. It was put to Njabulo in cross-examination that upon
arrival at the Ngema homestead, the young men must have been peppered
with questions by their neighbours about who had done this
to them.
That would appear to be even more likely when the SAPS arrived there
and I cannot accept that this is something that was
of no concern to
the SAPS. Which leaves the silence of the young men as to who
attacked the Gumede homestead unexplained.
[28]
But the principal difficulty that I have lies in the evidence of
Njabulo. The regional
magistrate appears not to have placed
sufficient emphasis on the fact that his observations occurred from a
distance of approximately
70 metres, at night, and at a scene
obscured with smoke. His evidence was that the appellant wore a blue
two-piece overall. That
is a very common mode of attire amongst
working men and is not distinctive. Indeed, it was alleged that
another attacker also wore
an identical coloured garment. The
distance at which the observations were allegedly made by Njabulo is
considerable. The conditions
under which he made them were less than
optimal and it was a scene of some mobility. Contrary to the finding
of the regional magistrate,
Mbekezeli did not corroborate Njabulo’s
evidence as to identity, apart from a single reference to the
appellant.
[29]
And then there is the appellant’s alibi. He advanced it,
underwent cross-examination
and called his witnesses, who confirmed
his alibi. They all withstood cross-examination and did not falter in
their versions. The
regional magistrate found that the evidence
placing the appellant at the scene of the crime was ‘so
strong’. I have
explained why I believe that she was incorrect
in that conclusion. She concluded that the version of the appellant
was not reasonably
possibly true. To reach this conclusion, there
would have to be a basis for the rejection of the witnesses who
supported the appellant’s
alibi. The judgment of the trial
court is bereft of any such reasoning. In my view, the appellant’s
alibi was not refuted
by the State.
[30]
I
am mindful of the following dicta in
S
v Francis
,
[9]
where the court observed that:
‘
The
powers of a court of appeal to interfere with the findings of fact of
a trial Court are limited. In the absence of any misdirection
the
trial court’s conclusion, including its acceptance of a
witness’ evidence, is presumed to be correct. In order
to
succeed on appeal, the appellant must therefore convince the court of
appeal on adequate grounds that the trial Court was wrong
in
accepting the witness’ evidence - a reasonable doubt will not
suffice to justify interference with its findings. Bearing
in mind
the advantage which a trial court has of seeing, hearing and
appraising a witness, it is only in exceptional cases that
the Court
of appeal will be entitled to interfere with a trial court’s
evaluation of oral testimony.’
In
my view, this is a matter where this court must interfere with the
evaluation of the young men’s evidence and come to a
different
finding.
[31]
I am acutely aware of the seriousness of the allegations against the
appellant.  The
murders that occurred on the evening in question
were carried out in a merciless and barbaric fashion. Those who
committed them
need to be severely punished for their actions. But we
are a civilised country with a well-established justice system. Our
citizens
would not want persons punished if their guilt had not been
properly established according to the standards developed by that
justice
system. After anxious reflection, I come to the conclusion
that the guilt of the appellant was not established beyond reasonable

doubt and that it would be unsafe to allow his conviction to stand.
[32]
I would accordingly propose that the appeal be allowed and that the
conviction and sentence
of the appellant be set aside.
MOSSOP J
I agree and it is so
ordered.
BALTON J
APPEARANCES
Counsel
for the appellant:
Mr
H N Mlotshwa
Instructed
by:
Legal
Aid South Africa
Durban
Counsel
for the state:
Mr
T Chetty
Instructed
by:
Director
of Public Prosecutions
Durban
[1]
C
T Lewis and C Short
A
Latin Dictionary
(1879)
(accessible at
https://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A1999.04.0059%3Aentry%3Dalib
.
[2]
The
appellant and one other, Thembinkosi Mgadeleni Nkosi, stood trial
together. The accused’s co-accused was convicted but
has not
appealed his conviction or sentence.
[3]
S
v Mthetwa
1972
(3) SA 766
(A) at 768A-­C.
[4]
Bizarrely,
before agreeing that the distance was 70 metres, one of the legal
representatives estimated the distance to an identified
point in the
vicinity of the court room in which the trial was proceeding as
being 350 metres and another estimated it to be
three metres.
[5]
The
Oxford Online Dictionary:
‘
Silhouette:
A dark outline, a shadow in profile, thrown up against a lighter
background.’
(
https://www.oed.com/search/dictionary/?scope=Entries&q=silhouette
).
[6]
R
v Mokoena
1958
(2) SA 212
(T) at 217G-H (‘
Mokoena
’
).
[7]
S
v Musiker
[2012]
ZASCA 198
;
2013
(1) SACR 517
(SCA)
para 15.
[8]
R
v Hlongwane
1959
(3) SA 337
(A);
[1959] 3 All SA 308
(A) at 339C-D.
[9]
S
v Francis
1991
(1) SACR 198
(A)
at 198j-199a in the headnote.