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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO: CA&R 250/12

IN THE MATTER BETWEEN:

XOLANI MDE .....................................................................................FIRST APPLICANT

LUNDI SWARTBOOI ...................................................................SECOND APPLICANT

AND

THE STATE .................................................................................................RESPONDENT

Coram: Alkema and Lowe JJ

Date Heard: 27 February 2013

Date Delivered: 27 February 2013

Nature of matter: Appeal against conviction – case of murder

Order: Conviction of the appellants on the charge of murder - set aside, and replaced with a verdict - that appellants are both individually guilty of assault with intent to cause grievous bodily harm to the deceased.

As to sentence they were both sentenced to 12 months imprisonment.

Taking into account that the accused were convicted and sentenced on the 21 October 2011, the appellants are to be released immediately.

JUDGMENT

LOWE, J:

[1] The two appellants in this matter (first appellant was accused 1 and second appellant accused 3 in the trial) appeal in this matter in respect of their conviction only.

[2] The two appellants appeared with two other accused (accused 2 and 4) in the Regional Court Port Elizabeth on one count of murder, it had being alleged that on the 20 November 2004 and at Kwazakhele the accused unlawfully and intentionally killed Xolani Adam.

[3] Accused four predeceased the trial.

[4] The trial commenced on the 2 July 2009 (a long time after the death of the deceased) all the accused pleading not guilty and being represented. In 2011 both appellants where convicted of murder whilst accused 2 was convicted of assault with intent to do grievous bodily harm.

[5] This matter comes before this court by virtue of leave having been on petition to the High Court.

[6] At the trial it was common cause that the deceased died as a result of stab wounds which penetrated his pulmonary artery and left lung and the consequences thereof.

[7] The state called two witnesses, Nosisa Mfuneli and Wilfred Buthelezi prior to closing its case against the appellants.

[8] Dealing firstly for convenience with the evidence of Buthelezi, it suffices to say that his evidence was contradictory, confused and confusing, the magistrate finding him to be a poor witness as he not only contradicted himself but also his statement (exhibit F) which he had made to the police.

[9] In my opinion the magistrate was perfectly correct in his criticism of the Buthelezi evidence, correctly finding that the court could not rely thereon.

[10] That being so, and I am in agreement with the magistrate in this regard, not only should the Buthelezi evidence be disregarded entirely, but further this means in effect that the evidence of Mfuneli (the remaining state witness) must be regarded as that of a single witness, and thus approached with caution.

[11] Counsel for appellant referred to S v Mia and Another [2008] ZASCA 117; 2009 (1) SACR 330 (SCA) at 335 b – d (para [12]) in this regard. As appears from that matter and whilst the proper approach in a criminal case is to consider the evidence in its totality, should the trial court in the course of assessing the evidence before it find that a particular witness is unreliable (and reject his version for that reason) that evidence plays no further part in the determination of the guilt or innocence of the accused in the absence of satisfactory corroboration.

[12] As the evidence of Buthelezi was essentially relevant to what occurred when the deceased went into a house nearby (out of sight of the first state witness), her evidence cannot corroborate Buthelezi in any material respect. Although his evidence as to what happened outside the house could have been corroborated by the first state witness he changed his evidence in material respects in this regard and contradicted his statement as to the essential elements thereof to such an extent that this to falls to be rejected entirely.

[13] In the result in the appeal, I have had no regard to the evidence of Buthelezi in reaching the conclusion that I have, and treat the evidence of Mfuneli as that of a single witness accordingly.

[14] Mfuneli was washing herself inside her house when she heard screaming outside, she leaving her home and from a distance of 18 to 20 metres away saw all three accused assaulting the deceased. She said that she did not know Bongani Siyolo (the deceased accused 4) did not see him (or any fourth person) at the assault incident in the street.

[15] She gave fairly detailed evidence of the assault testifying that whilst the deceased was kneeling, first appellant was kicking him in his stomach, accused 2 and second appellant hitting him with clenched fists in the face. (In cross-examination she mentions that first appellant hit the deceased with his fists but cannot explain why she did not raise this earlier).

[16] She says that Buthelezi arrived after the assault had occurred accused 2 asking for a t-shirt from second appellant then running towards the street.

[17] Her evidence in this regard however is contradictory as she said initially that accused 2 ran from the scene but later said that this was in fact the first appellant who ran towards the street, whilst accused 2 and 2^nd appellant continued to assault the deceased. When this is “clarified” by the prosecutor she insists that accused 2 ran towards the street whilst first and second appellants continued the assault – her version however appearing somewhat unreliable in this regard.

[18] Her evidence crucial as to the charge of murder was that the deceased managed to stand up after the assault and run into the nearby house followed by (she says) first and second appellant and Buthelezi.

[19] On this version she says that the accused 2 then came back with an object wrapped in a pink cloth he also entering the house referred to.

[20] She apparently then went back into her house and continued washing herself emerging only when she heard screams, finding a group of people in the yard of the house where the deceased and others had entered. She went into the house and found Buthelezi and the body of the deceased lying on his back.

[21] She concedes she has no idea what happened in the house and did not see anybody stab the deceased.

[22] This witness (Mfuneli) was unsatisfactory in other respects, an example being that although she initially said that she knew the accused (one, two and three), at a later stage she mixed up their names giving the name of the first appellant as Ngaphi and identifying accused 2 as Mde which is of course the name of first appellant. Although this is not relevant to identification as it is common cause that the appellants were at the scene, what is in issue is what they did and at what stage, and this confusion casts some doubt on this witnesses’s version of the events. Of course I appreciate that this is also not relevant to what happened in the house, but what is relevant is who entered the house, if anyone at all, bearing in mind that the appellants denied entering the house, although conceding having fought with the deceased outside the house.

[23] As pointed out by counsel for the appellants, whilst the regional magistrate stated that he approached the evidence of Mfuneli with caution (she being effectively a single witness), the magistrate fails to make a critical analysis of her evidence and does not state why he preferred this to that of the appellants.

[24] In my view it is trite that particularly when weighing the evidence of a single witness the court is required to consider its merits and demerits and to decide whether it is trustworthy and whether even if it has shortcomings it is clear that the truth has been told. S v Sauls 1981 (3) SA 172 (a) 118 C – G. Appellants counsel correctly refers to the principle that a court should state its reasons for preferring the evidence of the state witness over that of the accused so that this can be considered in the light of the record. S v Guess 1976 (4) SA 715 (a) and 718 F to 719 A.

[25] Of course I bear this in mind, having regard to the fact that in applying the onus, the court in a criminal matter must, where the accused’s version is said to be improbable, only convict where it can pertinently find that the accused’s version is so improbable that it cannot reasonably possibly be true. S v Shackell 2001 (2) SACR 185 (SCA) [para 30].

[26] The point at issue, and the crux of the matter is whether it can be accepted on the evidence of Mfuneli that the appellants entered the house where the deceased was immediately prior to his death, whether accused 2 followed carrying an object wrapped in a cloth, and inferentially whether this together with the deceased’s death by stabbing and the presence of a bloodied knife in the house, is sufficient to convict the appellants.

[27] On the above, and briefly stated, first appellant having deposed to the assault incident in the street (he admitting the he hit the deceased once with his fist) denies that he followed the deceased into the house or that he entered the house at all. Although not perfect in every respect this appellant’s evidence held up reasonably well in cross-examination, and I am not in agreement with the magistrate that this (or the evidence of second appellant) disclosed these to be “poor witnesses”. The evidence of the second appellant was similarly that having been struck by the deceased he fought back leaving the scene after the deceased stood up, denying that he entered the house.

[28] The evidence of the second accused failed to implicate the appellants in the stabbing of the deceased.

[29] Against this background the magistrate was bound, if he was to convict, to do so on the basis of inferential reasoning.

[30] In essence the magistrate finds on the facts that all the appellants entered the house, exiting therefrom leaving the deceased dead or dying having been stabbed, the only other person present being the unsatisfactoriy witness Buthelezi.

[31] On the reading of the evidence, and finding that the evidence of Mfuneli on whether or not the appellants entered the house needs to be approached with caution, and whilst agreeing with the magistrate that the evidence of the appellants is not beyond criticism, this must be considered on the totality of the evidence (excluding Buthelezi). It must be decided whether the necessary inference can correctly be drawn that the appellants participated in or were responsible for the death of the deceased by stabbing him.

[32] What the magistrate appears to overlook is that it was not only the appellants that were present when the deceased was stabbed. Buthelezi was also present in the house remaining there with the deceased, and accused 4’s whereabouts were not clearly established. It is also alleged that the accused 2 entered the house with the unknown object. The magistrate appears to have ignored the fact that there were undeniably people in the yard at the house where the body was found and accordingly no evidence beyond inferential reasoning as to what happened in the house and as to who did what, even if it is accepted that the appellants entered same, which is by no means clearly established (but for the somewhat unreliable evidence of Mfuleni).

[33] Inferences are drawn from circumstantial evidence. In considering this the court must always consider the cumulative effect of all the items of circumstantial evidence. See R v De Villiers 1944 Ad 493 at 508 to 509. In criminal proceedings (R v Blom 1939 Ad 188 at 202-3 there are two rules of logic. The first rule is that the inference sought to be drawn must be consistent with all the proved facts: if it is not, the inference cannot be drawn. Secondly the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn: if these proved facts do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct. See S v Reddy 1996 (2) SACR 1 (a) 8 c – d.

[34] In Reddy (supra) Zulman AJA:

“In assessing circumstantial evidence one needs to be careful not to approach such evidence upon a piece-meal basis and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by the accused is true. The evidence needs to be considered in its totality. It is only then that one can apply the oft-quoted dictum in R v Blom 1939 AD 188 at 202-3, where reference is made to two cardinal rules of logic which cannot be ignored.”

[35] It has been pointed out that the second rule takes account of the fact that in a criminal case the state should furnish proof beyond reasonable doubt.

[36] As counsel for appellant correctly points out, there is no obligation upon an accused, where the state bears the onus, to convince the court that he is innocent. If his version is reasonably possibly true he is entitled to his acquittal even though his explanation is improbable. See S v Mafiri 2003 (2) SACR 121 (SCA) at 125 c – d.

[37] Mafiri (supra) points out that:

“A court is not entitled to convict unless it is satisfied not only that the explanation is improbable but that beyond any reasonable doubt it is false. It is permissible to look at the probabilities of the case to determine whether the accused’s version is reasonably possibly true but whether one subjectively believes him is not grotesque. As pointed out in many judgments of this Court and other courts the test is whether there is a reasonable possibility that the accused’s evidence may be true.”

[38] In respect of the conviction of murder the magistrates reasoning cannot be sustained the magistrate erring inter alia in the following respects:

38.1 Whilst correctly categorizing the evidence of Mfuneli as that of a single witness, failing to sufficiently and properly analyse same, failing to consider its merits and demerits, ignoring its shortcomings and in finding or being satisfied that the truth had been told;

38.2 In failing to state sufficient reason for preferring the evidence of Mfuneli to that of the appellants;

38.3 In failing to appreciate that having regard to the presence of the others (as described above) not only in but certainly outside the house where the deceased was stabbed, the circumstantial evidence and the inference to be drawn therefrom as to how the deceased was stabbed to death required a careful analysis of the facts and the application thereof to the inferential reasoning requirements;

38.4 The inference which the magistrate drew was not consistent with all the proved facts nor did the proved facts exclude every other reasonable inference from them save the one which the magistrate drew.

[39] In view of the above the magistrates rejection of the appellants version cannot be supported and it cannot be found that their version was not reasonably possibly true relevant to the death of the deceased.

[40] This is of course not the end of the matter as it is necessary to consider whether, on the acceptable evidence, there is sufficient to discharge the onus on any other competent verdict relevant to the charge itself.

[41] In my view the charge of murder relating to the death of the deceased, is sufficiently closely linked to the assault upon the deceased outside the house (although it is not alleged that this was the place of his fatal injury), to allow another competent verdict being either assault with intent to cause grievous bodily harm or common assault, as a competent verdict.

[42] Having regard to the appellants own admissions, and agreeing with the magistrate that this did not occur in the context of self defence (on the evidence), in the event of the appeal being successful the appellants should, on the evidence, nevertheless be convicted of assault with intent to cause grievous bodily harm to the deceased.

[43] There can be no doubt that the appellants held the intention to injure the deceased in a serious respect and certainly more than the normal consequences of an ordinary assault. This appears not only from the evidence of the nature of the assault but also the injuries sustained by the deceased prior to entering the home.

[44] In the result, the appeal is allowed, the conviction of the appellants on the charge of murder being set aside, and replaced with a verdict that the appellants are both individually guilty of assault with intent to cause grievous bodily harm to the deceased.

[45] As to sentencing, this court is in as good a position as the magistrate to impose an appropriate sentence in this regard, and taking into account the circumstances of the offence and the personal circumstances of the accused, they are both sentenced to 12 months imprisonment.

[46] Having regard to the fact the accused were convicted and sentenced on the 21 October 2011, the appellants are to be released immediately.

_________________________

M.J. LOWE

JUDGE OF THE HIGH COURT

ALKEMA, J:

I AGREE.

______________________

S. ALKEMA

JUDGE OF THE HIGH COURT

Obo the Appellant/Plaintiff: J. W. Wessels

Instructed by:

Obo the Respondent/Defendant:

Instructed by:

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