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IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case No: A152/2020

In the Appeal of:

SIDWELL MTEMBALETHU MQUMBISA                                   APPELLANT

and

THE STATE                                                                               RESPONDENT

JUDGMENT BY:           MBHELE, ADJP et NAIDOO, J

HEARD ON:                  15 March 2021

JUDGMENT BY:           MBHELE, ADJP

DELIVERED ON:         25 JUNE 2021

[1]       The appellant was arraigned before the Regional Magistrate, Bethulie for the murder of his wife and a man alleged to be her boyfriend. He was convicted of both counts of murder and sentenced to 15 years imprisonment on each count with effective imprisonment term of 30 years.

[2]     He now appeals against both convictions and sentences. In his notice of appeal the appellant contended that the court a quo erred in finding that the state proved its case beyond reasonable doubt. He further contended that the trial court erred in finding that there was corroboration in the state’s evidence and that it was satisfactory in all material terms. He contended further that the trial court erred in finding that the confession was made voluntarily and in accepting evidence of Matsoso and Tsabedi.  

[3]      The accused was convicted mainly on the basis of a statement he made to a magistrate in which he admitted having burst into the house where his wife and her boyfriend were and indiscriminately stabbed them with a knife. The appellant contested the admissibility of the statement, denying that it had been freely and voluntarily made. He averred that the contents thereof were dictated to him by the police.

[4]      Emmanuel Gopane, the investigating officer in this matter, testified to the effect that he took the matter over from Warrant Officer Matsoso who was on stand by and did preliminary investigations. He received a call that there was a body of a female person that was found lying in an open veld.  He and Warrant Officer Matsoso responded to the call and on their arrival at the scene he recognised the body as that of Notiti Nxosana who, according to him, was the appellant’s girlfriend. He knew both the appellant and the deceased because they all stay in the same neighbourhood in Bethulie. From the scene they went to look for the appellant to find out from him when last he saw his girlfriend. He told them that he broke up with the deceased and that he last saw her at a shebeen in Jim Fouche Street. He further said that he had a new girlfriend called Pontsho.

They proceeded to the shebeen where the appellant said he last saw the deceased to ask one Francina if she saw Notiti at the tavern. Francina confirmed that Notiti was indeed at the tavern in company of her new boyfriend, Tshokolo Lempetje. They proceeded to the farm where Tshokolo was staying to check his whereabouts and they found his body lying on the floor in his house where there was evidence that there could have been a commotion in the house. On the scene they observed two sets of foot prints, that of tackies and gumboots, blood spots and drag marks. The tackies’ prints disappeared within the premises while the gumboots’ prints led them to a river. In the meantime Warrant Officer Matsoso received information that the appellant was seen walking in the direction of the plots where Tshokolo was staying. They asked the appellant about the clothes he was wearing the previous day and he answered that he was wearing flip-flops not gumboots. They proceeded to his house to search and found no gumboots in the house. They went to search in the toilet and found gumboots soiled in blood. He told them that he attended some ritual where he had to slaughter a sheep. They followed up on this explanation but it was not confirmed, there was no ritual held where he said he attended one. Later in the week they followed information which led them to a denim skirt that was found in the veld with blood. The skirt was identified by Notiti’s family as the one she was wearing the previous day. It was put to him that both he and Matsoso threatened the appellant to induce the statement that the appellant made before Magistrate Du Toit. He denied this.

[5]       The next witness was Mr. Willem DuToit, a magistrate stationed at Phillipollis. His testimony was, inter alia, to the following effect: The appellant was brought to him by a police man who identified himself as Van Der Berg. He interviewed the appellant behind closed doors in the presence of an interpreter. In a discussion through an interpreter it came out that the appellant speaks Xhosa. He meticulously followed the procedure of informing the appellant of his constitutional rights and enquired whether he had been assaulted or in any other manner influenced to make a statement. The appellant responded in the negative. Upon noting a minor cut on his thumb he paused to ask about the cause thereof and the appellant responded that he was cut by fence. When he was satisfied that the appellant was voluntarily making the statement and that there were no promises made to him in return, he proceeded to take the statement.

[6]       The appellant told him that it was on Sunday afternoon when he went to look for his wife. He went around asking people in the community if they saw her anywhere, he was told that she was seen walking in the direction of the plots with the Tshokolo. He then went home where he took off his flip-flops and wore gumboots. Thereafter he headed to the plots where Tshokolo was staying. On his arrival at his house he peeped through a hole and saw his wife undressing while the Tshokolo was lying on the bed. He barged into the house and his wife reached for a pot filled with water and threw it at him. He ducked to avoid contact with water. After his wife threw the water at him the Tshokolo switched off the light. He saw a knife on the table before the lights were turned off, he reached for it and started indiscriminately stabbing the two people in the room. He heard Tshokolo groaning while he was stabbing him and Notiti. He thereafter left in a rush fearing the owner of the plot. He showed Mr. Du Toit his jacket that got torn when he walked through the fence on his way home. The following day he got a message from Gopane and Matsoso that his wife died. The statement was read back to him and he thereafter signed it having declared that he understood its contents. The statement was accepted by the trial court with no objection from the appellant and it was read into record.

[7]       Dibuseng Namba confirmed the evidence of Mr. Du Toit and that she was the interpreter who was involved in the taking of the appellant’s statement.

[8]       The appellant denied any involvement in the murder of both the deceased. His version is that he was with Pontsho, on the night of the incident. He testified that he had been threatened by the police in order to squeeze the statement out of him. He testified that Gopane and Matsoso told him that he would not get bail unless he went before the Magistrate to give the statement that the state relied on. For the first time under cross examination he told the trial court that he sustained an injury on the wrist when he was assaulted to induce the statement. He asserted that whatever he told the Magistrate was dictated to him by the two police officers. This evidence was not put to Gopane.

[9]      The State applied for the reopening of its case where after it called Julia Masita, a forensic nurse who examined the appellant before and after being taken to the Magistrate for confession. On the two occasions when she examined the appellant she did not observe any fresh injuries on his body. She only observed old scars on the middle finger of the left hand. He was sober, calm and of sound mind.

[10]    The Magistrate evaluated the evidence and came to the conclusion that the state witnesses were truthful and honest and rejected the version of the appellant as false and improbable. She found that the appellant was evasive and struggled to stick to one version. The Magistrate found that the extra- curial statement made by the appellant is corroborative to the evidence of Gopane and the post mortem reports for both the deceased. The post mortem reports show that both deceased sustained multiple stab wounds all over their bodies which are said to be the direct cause of their deaths. The multiple stab wounds they sustained corroborate the extra curial statement which stated that the appellant stabbed the deceased in the dark blindly and indiscriminately several times. The Magistrate, further, came to a conclusion that the appellant dragged Notiti away from the house and left her in the veld to die.

[11]   Ms. Kruger, on behalf of the appellant, conceded that the admission of the appellant’s extra- curial statement by the trial court is unassailable. She conceded that the appellant was a bad witness and that the evidence shows that he made the statement voluntarily. She submitted, further, that the trial court erred in finding that the appellant intentionally killed the deceased. In her view, the available evidence called for a conviction on culpable homicide.

[12]     Section 219 (A) of The Criminal Procedure Act 51 of 1977 (The Act) regulates the admissibility of admissions while section 217 regulates confessions. An admission is defined as a statement made by a party to litigation which is adverse to that party's case. The statement must be voluntary for it to qualify as an admission. Section 219 (A) of the Act provides as follows: 

‘(1)   Evidence of any admission made extra-judicially by any person in relation to the commission of an offence shall, if such admission does not constitute a confession of that offence and is proved to have been voluntarily made by that person, be admissible in evidence against him at criminal proceedings relating to that offence: Provided that where the admission is made to a magistrate and reduced to writing by him or is confirmed and reduced to writing in the presence of a magistrate, the admission shall, upon the mere production at the proceedings in question of the document in which the admission is contained-

 

(a)    be admissible in evidence against such person if it appears from such document that the admission was made by a person whose name corresponds to that of such person and, in the case of an admission made to a magistrate or confirmed in the presence of a magistrate through an interpreter, if a certificate by the interpreter appears on such document to the effect that he interpreted truly and correctly and to the best of his ability with regard to the contents of the admission and any question put to such person by the magistrate; and

 

(b)    be presumed, unless the contrary is proved, to have been voluntarily made by such person if it appears from the document in which the admission is contained that the admission was made voluntarily by such person.

(2)    The prosecution may lead evidence in rebuttal of evidence adduced by an accused in rebuttal of the presumption under subsection (1).’

[13]   It is a well-established principle that, during trial, parties must prove their cases through evidence. Admissions are an exception. Section 219 (A) sets out the requirements that should be complied with to safeguard the right to a fair trial in the face of admissions. When it became apparent that the appellant wanted to make a statement adverse to his case, the police arranged that he be brought before a Magistrate. The Magistrate took care to explain the appellant’s rights before taking his statement. He was sent to the clinic for the forensic nurse to examine him, and satisfy herself that he was not assaulted, before and after he went to give his statement to the Magistrate. The fact that he was brought before a Magistrate who enquired from him through an extensive questionnaire whether he was threatened in any manner is a redeeming feature that guarantees free will. I cannot find fault in the trial court’s finding that the statement was made voluntarily.  

[14]    The question to answer is whether the state succeeded in proving beyond reasonable doubt that the appellant intentionally caused the death of the deceased. Intention is about the perpetrator’s state of mind during the commission of the offence. It concerns what the accused foresaw not what he should have foreseen. Intent in criminal matters is categorised in three forms: dolus directus, dolus indirectus and dolus eventualis.  Intent in the form of dolus eventualis is present when the perpetrator objectively foresees a possibility of his actions resulting in the death of the deceased and persists regardless of the possible consequence.

[15]      In S v Qeqe 2012 (2) SACR 41 ECG at 48e-f the following was said:

“Where the accused performs an action knowing or foreseeing that somebody may be killed, and yet, despite that knowledge and reckless of the eventuation of the possible result, persists with that action, the form of intention is known as dolus eventualis.”  See also (Director of Public Prosecution v Pistorius 2016 (1) SACR 431 (SCA)

[16]     The author of Criminal Law CR Snyman 2008 at page 184 says the following in relation to dolus eventualis

           “A person acts with intention in the form of dolus eventualis if the commission of the unlawful act or the causing of the unlawful result is not his main aim but;

(a)      he subjectively foresees the possibility that in striving towards his main aim the unlawful act must be committed or the unlawful result may be caused, and

(b)      he reconciles himself to this possibility.

[17]     Did the appellant foresee that his actions would result in the death of the deceased but nevertheless persisted with it disregarding the possible consequence thereof? It is apposite to consider the evidence in its totality to answer this question.  The evidence shows that the appellant had been looking for his wife earlier in the day. When he heard that she left with Tshokolo he followed her to Tshokolo’s place of abode. He peeped through a hole and saw both of them engaging in illicit sexual relations. He burst into the room and violently attacked them. He lost control and attacked them with all his might that none of them managed to fight back. He was engulfed in anger and had total disregard of the consequences of his actions.

[16]    The trial court correctly found that although the appellant had an intention to commit both murders, they were not pre-planned. The appellant flew into a fit of rage and attacked the deceased. There is no evidence that he came prepared to murder the deceased. He did not bring the murder weapon, the knife. He found it on the table when he stormed into the house. There is no evidence that he carried out any special preparations for the smooth execution of his plan. He acted on the spur of a moment. The evidence shows that he foresaw that his conduct would lead to the murder of the deceased and nevertheless persisted with it. He knew that with every blow that he delivered the possibility of death of the deceased is was becoming a reality but persisted.

[17]   It is trite that factual and credibility findings of the trial court are presumed to be correct unless they are shown to be wrong with reference to recorded evidence.  The acceptance by the trial court of oral evidence and conclusions thereon are presumed to be correct, absent misdirection.  (See S v Francis 1991 (1) SACR 198 (SCA) at 204 e-d.) A court of appeal may only interfere where it is satisfied that the trial court misdirected itself or where it is convinced that the trial court was wrong. (See R v Dhlumayo & another 1948 (2) SA 677 (A) at 705-706). 

[18]    The powers to evaluate and appraise evidence belong to a trial court and its conclusions cannot be interfered with simply because a court of appeal would have come to a different finding or conclusion. The trial court’s advantage of seeing and hearing witnesses places it in a better position to assess the evidence than a court of appeal, and such assessment must take precedence unless there is a clear and demonstrable misdirection. The Supreme Court of Appeal held as follows in S v Pistorius 2014 (2) SACR 315 (SCA) par 30:

'It is a time-honoured principle that once a trial court has made credibility findings, an appeal court should be deferential and slow to interfere therewith unless it is convinced on a conspectus of the evidence that the trial court was clearly wrong. R v Dhlumayo and Another 1948 (2) SA 677 (A) at 706; S v Kebana 2010 (1) All SA 310 (SCA) para 12…. As the saying goes, he was steeped in the atmosphere of the trial. Absent any positive finding that he was wrong, this court is not at liberty to interfere with his findings.'

[19]    I am unable to find any demonstrable or clear error on the part of the trial court to justify interference with its credibility findings. The trial court was correct in its assessment of evidence and credibility findings. I cannot find that the trial court erred in finding that the appellant’s version is false and fell to be rejected. The appeal against both convictions ought to fail.

[20]    The sentencing powers are pre-eminently within the judicial discretion of the trial court; the court of appeal should be careful not to erode such discretion. The court sitting on appeal will interfere if the sentencing court exercised its discretion unreasonably or in circumstances where the sentence is adversely disproportionate. See S v Rabie 1975 (4) SA 855 (A) at 857 D-E; also S v De Jager and Another 1965 (2) SA 616 (A).

[21]    The offences committed by the appellant are undoubtedly serious ones.  The offences of murder in the circumstances of this matter fall within the purview of section 51(2) of Act 105 of 1997 which prescribes minimum sentences for offences of a particular nature. The minimum sentence applicable in the circumstances of these 2 offences is 15 years each. We can only depart from these prescribed sentences if there are substantial and compelling circumstances warranting deviation.

[22]      The trial court took into consideration that the appellant was 40 years of age at the time of sentencing, he is the father of two minor children, he went to school up to standard 8, he was employed at a Police Station washing cars before his arrest, he earned R960-00 per month, he spent 3 years 4 months in prison awaiting trial. He has a long list of previous convictions. He was convicted of assault on 09 October 1993, possession of dagga on 22 March 2000, Stock theft and crimen injuria on 4 June 2001, assault on 21 September 2001, Possession of drugs on 25 January 2001, Possession of dagga on 15 June 2004, Possession of dagga on 7 September 2005, Housebreaking with intent to steal and theft on 15 February 2007 and Malicious damage to property on 10 October 2007.

[23]  The appellant has no respect for law. It is apparent from his long list of previous convictions that he has the propensity to commit violent crimes. He also appears to have no respect for other human beings. These two murders emanated from the appellant’s sense of entitlement and a belief that he owns Notiti’s body. It is that sense of entitlement that made him believe that it was correct for him to move on with Pontsho and wrong for Notiti to have a boyfriend. Notiti and Tshokolo paid the ultimate price for patriarchy and inequality that have tightened their grip on society.  She died even though she tried to move away from the appellant, which is advice often given to women in abusive relationships.

[24]      While the world is battling the Covid 19 pandemic, a huge number of women in this country are confronted with the highest form of human rights violation in the shape of Gender based violence. Violence against women is a monster that refuses to relent. Our society is characterised by orphans who lost mothers to violence and women who walk around with broken limbs, swollen faces and whose tongues are lisping through the gaping holes in their mouths representing spaces where their teeth used to be. It is the courts that have to give women hope that their tormentors’ despicable conduct will not go unpunished.

[25]     It is so that sentence must be tailored to suit the offender, the crime and the circumstances surrounding the case.  Punishment must be proportionate to the offence. Nothing justified the amount of terror that the appellant unleashed on both the deceased.  The offences call for lengthy jail sentences.

[26]    When weighing up the mitigating factors against the aggravating circumstances, this matter as well as the interest of community, I am not persuaded that there is a just cause to interfere with the sentence imposed by the trial court.  The appeal ought to fail in toto.

ORDER

 

[27]     The following order is made:

1.   The appeal against convictions and sentences is dismissed;

2.   The convictions and sentences are confirmed. 

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N.M. MBHELE, ADJP

 

I concur

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S. NAIDOO, J

I concur

On behalf of the appellant: Ms. S Kruger

                                                        Instructed by:

                                                        Justice Centre

                                                        BLOEMFONTEIN

 

 

 

On behalf of the respondent:Adv. B Mpevane

                                                        Instructed by:

                                                        Director: Public Prosecution

                                                        BLOEMFONTEIN

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