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1990
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[1990] ZASCA 154
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S v Magwaza (262/88) [1990] ZASCA 154 (29 November 1990)
CG CASE NUMBER: 262/88
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
HUMPHREY PAKADE MAGWAZA
Appellant
and
THE STATE
Respondent
CORAM
: E M GROSSKOPF, STEYN et F H GROSSKOPF JJA
HEARD ON
: 15 NOVEMBER 1990 DELIVERED: 29 NOVEMBER 1990
JUDGMENT STEYN JA
2
Appellant and six others were arraigned before Broome J and assessors in the
Durban and Coast Local Division on a charge of murder
and 8 other charges, all
relating to events on Saturday morning the 21st May 1983 in the Durban area. All
pleaded not guilty to all
the charges. Appellant was accused no 4. Accused no 1
was Baba Sibaya and accused no 2, Moroka Moloka. The three of them were
convicted
of murder (i.e. on count 1). Extenuating circumstances having been
found, all three were sentenced to imprisonment which in appellant's
case was a
term of 8 years. With leave of this Court he appealed to the full bench of the
Natal Provincial Division against his conviction
and sentence. His appeal was
dismissed. With further leave of this Court he now appeals against his
conviction only, leave having
been refused in respect of his sentence. Accused 1
and 2 did not appeal at all.
The murder charge relates to the death of
3
Bongani Thomas Mkhize (the deceased) at Lamontville on the aforementioned
date. It is not in dispute that:
(a)
the deceased was murdered
near his home by a group of persons who jointly assaulted him, inter alia with
knives, and by pouring acid
over him;
(b)
the
cause of death was a penetrating incised wound on the back between the right
shoulder blade and the spine which penetrated medially
downwards for 5-6 cms and
ended in a 1 cm clean-cut wound on the posterior surface of the right
lúng which collapsed that
lung and caused fatal asphyxia and loss of
blood;
(c)
there were 9 other stab-wounds, all
on the back, the majority of which were serious, but none were
fatal;
(d) there were extensive acid burns on the
deceased's
body, which had a parchment-like appearance.
The only issues in the present appeal are whether appellant was one of the
assailants and, if so, whether he had the intention to
murder the deceased.
4
The events of that day relevant to the murder charge were described by the
two state witnesses, Reggie Msomi (Reggie) and the deceased's
sister, Anastasia
Mkhize (Anastasia). The appellant did not testify. Reggie is an intimate
personal friend of Thokoza Mtshali, a
cripple. The events of that day as
testified to by Reggie and Anastasia are chronologically as follows. At about
07h30 Reggie received
a message at his home in Lamontville from Thokoza to go to
him. Whenever Thokoza wanted to go out Reggie usually accompanied him
in order
to assist him. He went to Thokoza. Accused no 1 was there. He is a friend of
Thokoza's. Another person and two girls were
with accused no 1. A friend of his
and of Thokoza, Khulani, had been killed during the early hours of that morning.
The party consisting
of Thokoza, Reggie, accused no 1 and his companions
departed for the KwaGijima township in a car in which they had been given a
lift.
On the way they encountered appellant. Accused
5
no 1 caused the car to stop. Appellant got in, carrying a bottle and shoulder
bag. Reggie knew appellant well. Thereafter the party
continued on their way and
left the car at a spot known as stage 13. Accused no 2 joined them there. They
then went by taxi to the
dwelling of a close friend of the late Khulani. He
wasn't home. They left again. They then stopped at various places, travelling
in
different taxi's. At one of these places accused no 2 fetched a shoulder bag.
Eventually Reggie, Thokoza, appellant and accused
no's 1 and 2 alighted at the
corner of Roads 3 and 5 in Lamontville. Accused no 1 told Reggie and Thokoza to
wait there because Thokoza
was a cripple. Accused no' s 1 and 2 and appellant
then departed. Reggie and Thokoza waited a while, but Thokoza became impatient
and left in a taxi. Reggie could not accompany him because the taxi was
full.
In the meanwhile Anastasia was in the dining room of her family home at about
10h30-11h00. The
6
deceased was in the bathroom. (He was also known as "Sash", and was a member
of the Mashawelina gang.) Two persons entered by the
front door. One was accused
no 1, whom she knew; the other was a stranger whom she could not identify.
Accused no 1 entered knife
in hand. His companion held a hand-gun. Accused no 1
asked where Sash was. The deceased came out of the bathroom dressed only in
underpants and shoes. Accused no 1 made straight for him, still with knife in
hand. The deceased grabbed a spade and parried the
attack. The deceased then
fled out of the house, hotly pursued by accused no 1 and his companion. They
caught up with him outside
and stabbed him as he ran. There were many others
outside the house but Anastasia was unable to identify any of them.
In the meanwhile Reggie startéd following Thokoza's taxi on foot and
soon met up with a girl called Veronica. They went on
together. It was then
already late in the morning. As they were walking Veronica drew
7
his attention to something happening in the road. The road in question was
Road 3, also called Gwala Street. He looked and saw at
a distance of ¼ km
accused no's 1 and 2, appellant and two others known to him as Ricky and
Nkosana, assaulting a naked man.
All of them were "hitting him", as Reggie put
it. The naked man was on his feet. Reggie saw three of the assailants stabbing
him
- accused no 1 with a "bush knife", Ricky and Nkosana with pocket knives.
The naked person then fled, running in Reggie's direction,
pursued by his
assailants. Reggie then lost sight of them and continued on his way accompanied
by Veronica. Reggie did not know the
deceased and could not identify the naked
man. Reggie was under the impression that the naked man was being stabbed on his
chest,
but conceded that he may be mistaken as to that. He also admitted that he
may be mistaken as to the said distance. He was, however,
adamant that he
clearly saw who were assáulting the naked
8
man. Reggie said that he only noticed the assault after it had already
commenced.
In the meanwhile Anastasia had left home, looking for the
deceased. She found him lying naked in the road covered in blood and with
only
one shoe on. He was still alive. She started wiping the blood off him. Whilst
she was doing so accused no 1 and his companions
arrived. Accused no 1 remarked
to the deceased "Oh, you are still alive! We want to kill you because if we
leave you alive you will
have us arrested." One of the group had a bottle and
was shaking it. Another said they were going to pour acid over the deceased.
They then grabbed him and moved off with him, followed by Anastasia and her
mother who pleaded with them to leave deceased alone.
They did not heed the
women's pleas and proceeded with the deceased to a street named "Gwala" where
they told Anastasia and her mother
"to go back" as they did not want them to see
what they were going to do to the
9
deceased. She and her mother then "went back".
In the meanwhile Reggie and
Veronica were still on their way. Reggie testified as follows as to what then
happened: " I then saw those
who had been in the company of accused no 1 coming
back. I saw blood on accused no 1 and Nkosana and Ricky." He added that the
blood
on accused no 1 was on his hands and his clothing. He and Veronica then
continued on their way.
As Anastasia and her mother were on their way home
somebody shouted to her that "they" had let go of the deceased, and that he was
in a toilet. She went back and found him in the toilet of Mpanza's house in
Gwala Street. He was sitting on the wash basin trying
to open the tap but was
too weak to do so. He then had injuries on him which "were just like sand". (She
was obviously referring
to the "parchment-like" acid burns.) She had him
conveyed to hospital, but he died on the way. After the deceased had been
removed
to hospital she looked for
10
and found his underpants in the road along which accused
no 1 and his
companions had chased the deceased in the
direction of the place where she
had found him naked and
bleeding as aforementioned. The said pants had been
torn
open.
During cross-examination of Reggie by
appellant's counsel the following crucially important
passage appears
(question and answer):
"I am going to put it to you that accused 4 did join you in the taxi but that he
was not carrying a bottle. --He did have it. He
did have a shoulder-bag? -- He
had both."
It was also put to Reggie that appellant
took Thokoza
home and had not left in the company of accused no's 1
and 2. Reggie emphatically denied that appellant did so
and repeated that he had left with the two said accused.
Accused no's 1 and 2 testified on the merits
and . denied any participation in the assault upon the
deceased. The trial Court however found both of them to
11
have been lying witnesses and rejected their said denials. The Court in fact
found that accused no 1 had been "the ring leader or
prime mover" in the assault
upon the deceased.
The trial court accepted the evidence of Reggie and
Anastasia and also relied on the evidence of two other state witnesses who
identified
appellant as one of those seen later in the day at various other
places in the company of accused no 1. The Court regarded this continued
association of appellant with accused no 1 as a strong indication that appellant
was with him during the fatal assault upon deceased
and that he participated
therein. The State has now conceded, rightly to my mind, that these two
last-mentioned witnesses were most
unsatisfactory and that no reliance should be
placed upon their evidence. There were also misdirections of fact by the trial
court
pertaining to appellant, but they were in respect of peripheral matters
which clearly could not,
12
and did not, play any significant role in the decision of the
Court.
Anastasia and Reggie were, however, quite clearly very impressive
witnesses, and there were no material misdirections of fact by the
trial court
in dealing with and accepting their evidence. This Court will consequently only
interfere with the trial court's findings
of credibility if it is convinced that
it is wrong (
R v DHLUMAYO AND ANOTHER
1948 (2) SA 677
(A) at 706 par 8).
(This applies also ko findings in respect of particular witnesses even in cases
where a trial court's findings
regarding the credibilitý of other
witnesses are clearly wrong.) I am not convinced that the trial court's finding
in regard
to Anastasia and Reggie were wrong. On the contrary, I am satisf ied
that they are corréct. Their versions dovetail to such
a remarkable
degree on so many different aspects that the possibility of a conspiracy between
them to concoct a story falsely
13
implicating appellant can be discounted. Reggie and AMastasia clearly
witnessed different stages of the same assault. There can be
no reasonable doubt
that the naked man Reggie saw being assaulted was the deceased. That they did
not conspire to falsely implicate
appellant in the murder is demonstrated by the
fact that she did not identify him as one of the assailants and that Reggie did
not
allege that he assaulted the deceased with a weapon. Reggie and Anastasia
corroborated each other to a remarkable degree that accused
no 1 was a party to
the assault upon deceased and that he played a leading role in the group
concerned. The admission made cm appellant's
behalf that he was in the company
of Reggie and accused no 1 materially reduces the danger of a mistaken or
wilfully false identification
of him by Reggie as one of those who assaulted the
deceased. Reggie saw him actually participating in that assault. Appellant's
failure
to testify was decisive of the
14
matter. It converted what had been a strong prima facie
case
against him into a decisive one. The group were
clearly acting in the
execution of a common purpose to
assault the deceased. The nature of the
assault and the
statements made during the course thereof indicate
beyond
reasonable doubt that the purpose of that assault was to
kill the
deceased. Appellant was clearly a member of
that group throughout the
assault. When Reggie testified
that he "then saw those who had been in the
company of
accused no 1 coming back" (i.e. after having poured acid
over
deceased and letting him go) he clearly included
appellant in the group. He
had previously named those
whom he had seen "in the company of accused no 1"
and had
specifically stated that the appellant was one of them.
It is
clear, therefore, that appellant must have been
present when accused no 1
told Anastasia that they were
going to kill the deceased. In continuing to
participate
in the assault thereafter, appellant demonstrated that
he
15
shared that intention. To my mind the appellant was rightly convicted of
murder.
The appeal is dismissed.
M T STEYN
JA
CONCUR:
E M GROSSKOPF JA) F H GROSSKOPF JA)