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1991
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[1991] ZASCA 17
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S v Hlongwa (24/90) [1991] ZASCA 17; [1991] 4 All SA 467 (A) (21 March 1991)
24/90 /mb
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
BHEKANI HLONGWA
APPELLANT
AND
THE STATE
....RESPONDENT
CORAM
: HEFER, MILNE et KUMLEBEN JJA
HEARD
: 18 MARCH 1991
DELIVERED
: 21 MARCH 1991
JUDGMENT
KUMLEBEN JA/
1.
KUMLEBEN JA
:
On 13 August 1988 Patrick Khumalo was fatally stabbed in the chest. This led
to the appellant being indicted for murder before Gordon
AJ and two assessors in
the Durban and Coast Local Division of the Supreme Court. He was found guilty as
charged; but with extenuating
circumstances proved. The sentence was one of five
years' imprisonment. The appellant was granted leave by the court a
quo
to appeal against his conviction. In addition a question of law, based on an
alleged irregularity during the course of the trial,
was reserved for
consideration by this court in terms of
s 319
of the
Criminal Procedure Act, 51
of 1977
.
The evidence of the State explaining how the deceased came to be killed, and
implicating the appellant, was that of a single eye-witness,
Patrick Nyathi. He
was 18 years old at the time he testified on 7 November 1988. His evidence was
to the following
2/...
2.
effect.
Nyathi and the appellant were friends and
worked for the same employer. On the evening in
question the two of them
went to a shebeen located in a
house or shack, referred to in evidence as Nzuza's
place. They expected to
find their respective girl
friends there. They first entered a room where drinks
were available and
were there for about an hour.
During this time Nyathi remained with the other
three
but did not drink as he was an abstainer. (In his
evidence-in-chief
he said "I just don't drink at all",
but in cross-examination he watered this
down by saying
"I normally do not drink" and at a later stage in his
evidence said "I'm
not a drinker". ) When he in due
course entered the room where people were
dancing, he
found his girl friend Zodwa in the company of another
young
man. Nyathi requested him to accompany him
outside the house where Nyathi
asked him whether Zodwa
3/...
3. was his girl friend. This person replied that she was.
Nyathi told him that she was also his girl friend. Contrary to what one
might
have expected, this conflict of interest did not give rise to a dispute or
worse. Nyathi simply said to him: "[It] was okay,
he might as well go along with
her because nothing could be done if she was in love with him as well." Although
Nyathi was upset
by this disclosure, he remained on a friendly footing with this
other person and the two of them re-entered the house.
Next an unknown "senior man" appeared and
offered
Nyathi some free advice. (He was Patrick
Khumalo, later the deceased and
henceforth referred to
as such.) He said that Nyathi should not keep
company
with Zodwa because she has numerous boy friends. In
Nyathi's
words: "He told me to beware that whereas I
was considerate towards the other young man, there are
4/...
4.
those who would not be considerate to me. He advised
me to
leave her alone". It follows that the deceased
must have somehow overheard
the conversation between
Nyathi and her other boy friend. Before either
of
them could reply, the appellant appeared, pulled out a
clasp knife from
his right-hand trouser pocket and
opened it. The moonlight outside enabled
Nyathi to see
that it was an Okapi knife with a red handle and a
blade
about seven centimetres long. The appellant
stabbed the deceased on the left
upper arm. The
deceased ran away with the appellant, Nyathi and
apparently
others chasing after him. Nyathi
remonstrated with the appellant but to no
avail.
Under cross-examination he said that he also
remonstrated with a
certain Mandla and another Sipho,
implying that they were at that stage part
of the
assault group. During the chase the appellant stabbed
the deceased
once more, this time in the back between
5/...
5. his shoulder blades. This took place when Nyathi was no
more than five paces behind the appellant. Nyathi pleaded with the appellant
not
to assault the deceased as he had "done nothing bad" to him (Nyathi) . As a
result of the second stabbing the deceased fell next
to a stream. Sipho and
Mandla were at hand at this stage. After the deceased had fallen, Sipho took a
black wallet from the possession
of the deceased, but, in some or other manner
not explained by Nyathi, managed to leave his brown balaclava cap at the scene
in the
vicinity of the deceased.
The foursome (Nyathi, the appellant, Mandla
and Sipho) left together. When asked why he had not
attempted to assist
the injured person, he said that
he could not because the appellant had
threatened to
stab him when he pointed out to the appellant that he
had
attacked the deceased without reason. After they
6/...
6. left the deceased lying there, they did not disperse but
went to the garage where Nyathi and the appellant were employed. At no
stage on
their way there did the appellant leave the other three for any purpose. When
asked why he spent the night with them at
the garage he said: "I was compelled
really to sleep there. There was no other place where I could possibly find to
sleep." And when
asked why he did not break away from his companions to report
the matter to the people at the shebeen, in order that the deceased
could be
helped, he replied: "It wasn't easy for me to do that. I was part of the group,
I was going along with them. How would I
explain my departure from them - where
could I say I was going if I did so?" He was asked by the court whether he was
certain that
Sipho and Mandla did nothing to the deceased. In reply he gave this
somewhat confused and contradictory answer:
7/...
7.
"Well I'm sure that they didn't do anything to him while I was with them all. If
they had done it they could have done it when I
was not with them all but then I
was the person who was watching the
deceased."
Certain other State evidence, which is
common
cause or not disputed, ought to be mentioned. Detective
Sergeant Govender
stated that a balaclava cap was found
next to or close to where the deceased
lay. The
deceased's lover, Mrs Duma, noticed that the lining of
the deceased's trouser pockets had been turned inside
out. The findings in
the post-mortem report, which
were admitted, confirmed the evidence of Nyathi
on the
infliction of the two stab wounds.
The appellant gave evidence denying that he
was in any way involved in the murder. He gave this
account of his
movements that night. He went alone to
the Nzuza shebeen. There was an
incident involving him
and Thulani, who was Zodwa's brother. He demanded
8/...
8.
money from the appellant, felled him with his clenched
fist and took his money. The appellant retreated to
another house ("Duma's place") which was next door. He
remained there
until he saw that Thulani had left
Nzuzu's shebeen before he returned there.
At a later
stage Nyathi, Mandla and Sipho arrived. The four of
them sat drinking and dancing. Later on they left the
shebeen to go home. He, however, returned to Duma's
house, which was
apparently also a shebeen, in order to
buy some beer. His three companions
waited for him at
a spot about 20 metres from Duma's house. When
he
arrived there it had already closed and there was no
response to his
knocking on the door. He turned to
rejoin his friends but they had gone. He
decided to
walk on alone, presumably towards his home, along a
footpath.
He saw two men approaching him in single
file. The first greeted him and he
returned the
salutation. However, as he was about to pass him,
9/...
9.
this person blocked hís path, produced a knife and
demanded money from him. The appellant shouted out
"Why do you stab me?" With that someone from Nzuza's
shebeen said: "You, come here." This caused the two
men to run away. The
appellant walked on and caught up
with his three companions. He told them what had
happened. They proceeded to the garage where the four
of them spend the
night. No one produced a wallet at
the garage. He denied ever having stabbed the
deceased. I should add that
under cross-examination
the appellant admitted that in the proceedings in
terms
of
s 119
of the said Act he had told the magistrate
that one of the two persons who confronted him as he
walked home, grabbed
his clothing and the other person
was armed with a knife, whereas at the
trial he was
explicit in saying that only one person was involved.
The
record of the
s 119
proceedings was handed in as
Exhibit F. He is recorded as
having said:
10/...
10.
"One of them did grab me as indicated by holding the lapels of my apparel. The
other person was armed by means of a knife. After
the first person grabbed hold
of me, the second person, who had a knife in his possession, demanded me to
produce money."
The appellant called Mr Mandla Ngubane to testif
y on his behalf. He said that he, Nyathi and Sipho had gone to the Nzuza shebeen
where they met the appellant. He confirmed the appellant's version to the extent
that he said that the appellant left them to buy
some beer at Duma's house; that
they did not wait for them to return before proceeding on their way; that he
caught up with them
and told them that two people had tried to rob him.
Gordon AJ at the outset of his judgment
11/...
11.
candidly stated that deciding whether the State had proved
the guilt of the appellant was no easy task. The court was mindful of the
fact
that Nyathi was a single witness and that his evidence was unsatisfactory in
certain respects. For this reason due regard was
paid to what was said in
S v
Saul and Others
1981(3) SA 172(A) and particularly to the following passage
at 180 E - G (which was quoted by the trial court in the judgment):
"There is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the remarks of
RUMPFF JA in
S v Webber
1971 (3) SA 754
(A) at 758.) The trial Judge will
weigh his evidence, will consider its merits and demerits and, having done so,
wïll decide
whether it is trustworthy and whether, despite the fact that
there are shortcomings or defects or contradictions in the testimony,
he is
satisfied that the truth has been told."
After referring to the
defects in appellant's and
Mandla's evidence, the court found both of them to be
12/...
12.
untruthful and unreliable and rejected their
evidence. (Without necessarily subscribing to all the reasons given for this
conclusion,
one can, with respect, confidently endorse it.) As regards the
evidence of Nyathi, the court concluded, despite its defects, that
there was
corroboration of his evidence and that it could be accepted. The relevant, and
critical, reasoning which led to this conclusion
appears from the following
passage in the judgment:
"In weighing up all this evidence in the light of what we have stated, we find
that notwithstanding the shortcomings in Patrick's
evidence, he Patrick told the
truth when he described to us the wounding of the deceased.
His descriptions
of the wounds which he observed the accused inflict upon the deceased are
absolutely accurate, when considered in
the light of the postmortem report and
are in addition corroborated by the observations of Gloria, not only as to the
nature of the
iniuries suffered by the deceased, but also as to the place where
the body was found
.
There is no evidence that Patrick saw the deceased's body the following day.
There is no suggestion that Patrick himself did the
killing
13/...
13.
and falsely implicated the accused. Patrick was a friend of the accused, Sipho
and Mandla, yet the accused would have us believe
that he falsely implicated
both the accused and Sipho in crimes, and places Mandla in the position of an
eye witness. Patrick was
a friend of theirs and it is in our view improbable
that he would implicate all of. them in these various respects.
Beyond
reasonable doubt Patrick told the truth as to how the deceased was killed
."
(I italisize.)
Before commenting on this reasoning
and
conclusion, it is, I think, necessary to stress the
extent to which
Nyathi's evidence was deficient. If he
was bent on locating his girl friend,
it is somewhat
strange that he spent about an hour in another room
whilst his friends
were drinking before he went to see
whether she was there. His evidence on
whether he was
drinking during that time, or whether he ever imbibes,
is, as I have pointed out, contradictory. It is
unlikely that the
attention this other young man paid
to Zodwa would have been treated with such equanimity.
It is, if anything, more improbable that an unknown
14/...
14. adult overhearing this conversation would have
intervened and offered the alleged advice. The fact that, on Nyathi's evidence,
the appellant at this stage attacked and stabbed the deceased for no reason
whatsoever, can hardly be accepted. That part of his
evidence describing the
chase, and the stabbing of the deceased the second time at or. near the stream,
cannot be faulted. On his
version, however, he is quite unable to explain why he
accompanied the appellant and the other two from the scene of the crime and
spent the night with them: his answers were pitiful and patently false.
Viewing his evidence as a whole, one is left
with
the inescapable impression: that he was giving an
untruthful account of
events, particularly with
reference to what happened before the deceased
was
stabbed for the first time; that a further assault may
15/...
15. well have taken place more or less as described by him; that
the motive was in all probability robbery; and that, if the appellant
was not a
participant in the commission of this offence, he certainly condoned it. These
misgivings and reservations concerning the
evidence of Nyathi were shared by the
trial court. With reference to his evidence it is said in the judgment:
"We must record that we feel that the evidence as a totality, even in its
absolutely contradictory form, does not constitute the
whole truth of the
circumstances surrounding the incident in question, nor does it give any
satisfactory clue to what actually surrounded
what occurred."
and
"In fact we feel that he did not tell the whole, or the accurate truth of what
happened immediately before his discussion with the
deceased."
Reverting to the judgment, and particularly the
passage quoted from it, the court
16/...
16.
found corroboration of Nyathi's evidence in the
evidence
of Gloria Duma and the post-mortem report.
But such evidence does not justify the conclusion that
"Patrick told the truth when he described to us the
wounding of the
deceased", if by that observation is
meant that he necessarily told the truth
as regards the
identity
of the deceased's assailant or the stabbing on
the first
occasion. He may well have seen the
infliction of the two stab wounds and observed where
the deceased
ultimately fell. But his evidence in this
regard does not serve to
corroborate any other details
of his evidence or guarantee that such are
truthful and
reliable. It is true that he did implicate his friend
Sipho
in the crime of robbery (actually on his version
it may have amounted to no more than theft) but I do
not consider that
this fact really serves to confirm
his evidence as to the identity of the
person who
fatally stabbed the deceased. In this regard what was
17/...
17. said by Schreiner JA, although with reference to the
evidence of an accomplice, is pertinent in this case too:
"The cautious Court or jury will often properly acquit in the absence of other
evidence
connectinq the accused with the crime
, but no rule of law or
practice requires it to do so. What is required is that the trier of fact should
warn himself, or, if the
trier is a jury, that it should be warned, of the
special danger of convicting on the evidence of an accomplice; for an accomplice
is not merely a witness with a possible motive to tell lies about an innocent
accused but is such a
witness peculiarly equipped, by reason of his inside
knowledge of the crime, to convince the unwary that his lies are the truth. This
special danger is not met by corroboration of the accomplice in material
respects not implicating the accused, or by proof aliunde
that the crime charged
was committed by someone
;"
(I italisize: the passage is taken from
Rex v Ncanana
1948(4) SA 399 (A)
405.)
As Holmes JA pointed out in
S v Hlapezula and Others
1965(4) SA 439 (A) at 440 E - F: "by reason of his [an accomplice's] inside
knowledge, he has a deceptive
18/...
18.
facility for convincing description - his only fiction being
the substitution of the accused for the culprit." It is to my mind an
open
question whether there is not sufficient evidence for Nyathi to be treated as an
accomplice. Be that as it may, the same danger
of deceitful substitution
presents itself in this case. It would appear that this consideration may well
have been overlooked, or
not have been given sufficient weight, by the trial
court in its finding that there was corroboration of Nyathi's evidence. As a
spectator, or a participant, Nyathi was in a position to give a convincing
account of what happened (not that he did so) but at the
same time substitute
the appellant for Mandla or Sipho or perhaps himself.
For these reasons I am of the view that,
particularly since the evidence of this single eye-
witness was unreliable
in a number of respects,
19/...
19.
Nyathi's evidence, despite the poor evidence of the appellant
and his witness, ought not to have been regarded as sufficient to prove
the
guilt of the appellant beyond any reasonable doubt.
The alleged irregularity related to the use of a different interpreter to
translate the evidence of one of the witnesses. Since the
appeal on the merits
must succeed, there is no point in considering it.
Lastly, an aspect of the transcribed record
calls for comment and must be drawn to the attention of
the Registrar of
the court a
quo
. The names of the
persons putting and answering every
question have been
typed in the record rather than such identification
only when a change of
personae
arises. This is to an
extent a hindrance to the reader and no
doubt entails
some waste of time and perhaps money. This procedure
20/...
20. should be discontinued.
The appeal is allowed. The conviction and sentence are set aside.
M E KUMLEBEN
JUDGE OF APPEAL