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[2012] ZAWCHC 273
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Dyantyana v S (A97/12) [2012] ZAWCHC 273 (8 June 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
High
Court Case No.: A97/12
DPP
Referece No.: .9/2/5/1-56/12
In
the appeal between-
THULANI
DYANTYANA
...................................................................................................................
Appellant
And
THE
STATE
..................................................................................................................................
Respondent
Coram:
DLODLO J & VAN STADEN AJ
Heard:
8 June 2012
Judgment:
8 June 2012
JUDGMENT
Van
Staden. AJ
1.
The twenty-four year old appellant, Mr Thulani Dyantyana, was
charged with two other accused on two counts of murder and one
count
of assault with intent to do grievous bodily harm. The alleged
crimes were committed on 3 November 2006.
2.
The other two accused were acquitted on all the charges, but the
appellant was convicted of the murder of a person with the
name of
Mandisi Nobila also known as Mchelwa (“the deceased”)
and acquitted on the other charges. In the charge sheet
in respect
of the murder of the deceased, it is alleged that the appellant
killed the deceased by hitting; him with a blunt object
and by
stabbing him with a sharp object.
3.
The appellant was sentenced to ten years imprisonment of which four
years were suspended on certain conditions. The appellant
applied
for leave to appeal against conviction and such leave was granted.
FACTUAL
BACKGROUND
4.
On the day in question-troublemakers kicked in the doors of some
houses in Samora Machel township.. Apparently some of the
inhabitants of these houses were assaulted and their belongings
Stolen. A group of at least fifty members of the community assembled
and went from house to house to track down those whom they believed
to be responsible. The two state witnesses, Ms. Thandaswe
Mgidi
(“Mgidi”) and Mr Monlabu Mayembela (“Mayembela”)
were, according to their evidence, forced by this
group to assist in
locating some of the.perceived perpetrators.
RELEVANT
LEGAL PRINCIPLES
5.
In a criminal case evidence should not be separated into
compartments. An accused must be acquitted if it is reasonably
possible
that he/she might be innocent. The conclusion to convict or
to acquit must account for all the evidence. None of the evidence
may simply be ignored
1
.
6.
Corroboration is defined as confirmatory evidence confirming an
issue in a material respect. The corroborative evidence must
obviously be reliable
2
.
A trial court can only determine the probabilities with reference to
proven facts or facts which are not in dispute
3
.
7.
Circumstantial evidence is evidence of a fact or facts from which
inferences concerning the primary facts in issue can be made.
A
conviction based on circumstantial evidence can only be reached if
the guilt of an accused is the only reasonably inference
from those
facts
4
.
In the evaluation of evidence inferences must be carefully
distinguished from conjecture or speculation. Inferences must
furthermore
be based on proven facts
5
.
This rule applies in respect of inference and conclusions made for
the purpose of corroboration as well as for inferences or
conclusions made to evaluate the probabilities.
8.
The doctrine of common purpose entails that when two or more people,
having a common purpose to commit a crime, act together
to achieve
that purpose, the conduct of each of them in the execution of that
purpose is imputed to the others
6
.
It should be noted that common purpose cannot be imputed to a member
of a group unless that member knew that the crime would
be committed
or foresaw the possibility that it may be committed and reconciled
himself/herseif with that possibility
7
.
There must be evidence of active association of an individual
accused with the common purpose. Agreement, whether expressed
or
implied, is one. form of active association.
9.
Where there is direct evidence of the commission of an offence the
giving of a false alibi tends to strengthen the direct evidence.
Where it is sought to establish by inference the commission of an
offence by an accused or more particularly his subjective state
of
mind, various considerations may have a bearing on the extent to
which his giving of a false alibi should be taken into account
against him
8
.
A false alibi should be considered on the same basis as a failure to
testify. The alibi is. rejected but no additional weight
can be
attached to this evidence of a false alibi in support of the state’s
case
9
.
DISCUSSION
OF EVIDENCE AND JUDGMENT
10.
Mgidi who was seventeen years old when she testified and fifteen
years old when the incident occurred, when questioned by
the
regional magistrate, stated that she does not know what it means to
take an oath in court. The regional magistrate thereafter
warned her
to tell the truth and nothing but the truth. It is relevant to note
that her statement to the police was made under
oath. The magistrate
did not make a finding as to whether or not Mgidi understood the
nature and the import of the oath. He also
did not properly advise
her of the meaning of the oaith. On the authority of Lance Bessick v
The State, unreported judgment of
the full bench of this court,
delivered on 29 May 2012 (Case no. A539/2010), it is clear that the
evidence of Mgidi was not properly
tendered as required in terms of
Seciton 164(1) of the Criminal Procedure Act, Act 51 of 1977.
However in this matter l believe
that it is not. necessary to
specifically make a finding in this respect. The evidence of Mgidi
was in any event so unimpressive
that it should not have carried any
weight whatsoever. Her statement to the police did not at all
reflect.her evidence in court,
in this statement she for example
gave a detailed explanation of how the other deceased, a person
named Bantu, was assaulted
by the three accused, whereas she
testified that she only saw the body of Bantu afterwards. Her
evidence of the sequence of events
was so confusing that the
regional magistrate found it necessary to state during her evidence
in chief 7 do not
understand half of
what you are saying".
11.
There was furthermore a crucial contradiction in the evidence of
Mgidi as opposed to that of Mayembela. Mgidi described a
person by
the name of Zamazama as also being part of the group, whereas
Mayembela referred to accused no. 2 as Zamazama. Mayembela
testified
that it was very dark when the events took place and that one could
hardly see anything. His
evidence
was that the deceased, was held by the appellant when he emerged
from the house where he was staying.
12.
The confusion that reigned on the night in question was described by
Mayembela as follows:
“
all
of
them were asking the other one was asking another question and the
other one was asking another questionSo I cannot say - i
cannot
really say who was asking what because all of them were asking
questions. ”
13.
The magistrate described Mgidi as an important witness and stated
that her evidence of identification must be approached with
caution,
because she was a child at the time when the incident occurred. He
specifically referred to the fact that Mgidi’s
evidence
deviated from the statement that she made and that she contradicted
Mayembela in respect of Zamazama. Despite her evidence
that accused
no. 2 and 3 were involved and assaulted one of the deceased with a
plank and bricks, they were acquitted. Her evidence
in that respect
and obviously also her evidence that the appellant assaulted the
deceased with a golf club, were obviously not
accepted by the
magistrate. In respect of the appellant however, the magistrate
relied on the fact that the two state witnesses
knew her better than
the other two accused before the court.
14.
In respect of the credibility of Mgidi, the magistrate concluded
that it is quite likely that her youth played a major when
her
evidence in court was not clear and deviated form the contents of
her police statement. Rather than regarding her youth as
a factor
necessitating a cautionary approach, the magistrate utilized it as a
factor explaining the shortcomings of her evidence.
15.
In my view the evidence of Mayembela was of a better quality than
that of Mgidi. He testified that the appellant and the other
two
accused were the guards looking after him and the deceased. He also
testified that the appellant chased Mchelwa when he attempted
to
escape.
16.
In convicting the appellant as opposed to the other two accused the
regional magistrate relied heavily on the fact that he
was better
Known to both the witnesses than the other two accused and his
identification was therefore regarded as more certain.
The other two
accused were acquitted because their identification were not proved
beyond reasonable doubt. I cannot see how this
distinction can be
justified.
17.
The magistrate did not specifically refer to the doctrine of common
purpose, but that was obviously the only basis upon which
the
appellant could have been found guilty. In my view, although there
was evidence justifying a finding that the appellant and
also the
other two where present at the scene of the murder and formed part
of the group of persons/there was no acceptable evidence
that they
associated themselves with the murder of the deceased. It is not at
all clear whether a decision was taken by the group
to kill the
deceased or by individual members of the group and at what stage
such a decision was taken. Applying the legal principles
referred to
in paragraphs 7 and 8 above* the inference could not be made that
the appellant associated himself with the murder
of the deceased.
18.
Although the alibi evidence of the appellant was correctly rejected,
the deficiencies in the states case was of such a nature
that the
giving of a false alibi did not strengthen the states case to such a
degree that the appellant’s guilt was proved
beyond reasonable
doubt. See paragraph 9 above.
19.
In my view it is reasonably possible that the appellant might be
innocent.
CONCLUSION
20.
In all the circumstances I believe that the conviction of the
appellant on Count 1 was not justified and I would set aside
the
conviction and the sentence of the appellant and find him not
guilty.
W H Van Staden
Acting Judge of the
High Court
I
agree and it is so ordered.
D
V Dlodlo
Judge
of the High Court
1
S
v Van Aswegen
2001 (2) SACR 97
(SCA) at 100
f-
101
e; S v Chabalala
2003 (1) SACR 134
(SCA) paragraph 15.
2
Schmidt
Bewysreg (4
th
Edition
p. 119 en S v Gentle
2005 (1) SACR 420
(SCA) at 403 g - 431 c.
3
S
v Abrahams
1979 (1) SA 203
(AD) at 207 g - h; S v Hammond
2004 (2)
SACR 303
(SCA) at 310 b-g.
4
Schmidt
op.cit page 101-102; Burger and Others v S
(2010) 3 ALL SA 394
(SCA).
5
Bates
and Lloyds Aviation (Pty) Ltd and Another v Aviation insurance
Company
1985 (3) SA 916
(AA) at 939
6
Criminal
Law; CR Snyman (5
th
Edition)
p 264 - 265; S v Mzwempi
2011 (2) SACR 237(ECN)
; S v Mgedezi
1989
(1) SA 687
A at 705 i to 706 c.
7
Criminal
Law (C R Snyman) 5
th
Edition
page 264.
8
S
v Nkombani and Another
1963 (4) SA 877
(AD) at 893f.
9
Schmidt,
Bewysreg (4
th
Edition)
page 107 and S v Mtsweni
1985 (1) SA 595
(AD) at 594f. . .