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IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION) In the matter between:
ZIBUSE SOKHELE Appellant
AND
THE STATE Respondent
Coram: JOUBERT, CILLIé JJA et HOWARD AJA Heard: 9 March 1984 Delivered: 23 March 1984
JUDGMENT CILLIé, JA :
The appellant was found guilty in
the Witwatersrand Local Division of the Supreme Court
of having murdered
his former lover. Because there
were .... / 2
2
were extenuating circumstances present at the murder he was sentenced to 8
years imprisonment. This Court gave him leave to appeal
against his conviction.
The following evidence was placed before the Court a quo and has to be
considered.
For a number of years the appellant and the deceased lived
together in a room on the premises of her employers in Kelvin. Another
room on
the premises was occupied by Caroline Mphaka, the second domestic servant of the
same employers; she was the only state witness
at the trial of the appellant.
When the employers moved to Morningside at the end of February 1982 the
appellant was informed that
there would be only one servant's room
available .... / 3
3
available at the new premises; this room had to be shared by the deceased and
Caroline; there would be no room for him and he would
have to take his
belongings to his sister in Soweto. Apparently he did not remove all his
possessions in time and they were taken
to the house in Morningside. The
appellant did not know the address of this house. The lovers became estranged.
It is unnecessary
to deal with the appellant's evidence of how he discovered the
address and visited the deceased a few days before she was killed.
On the
fifth of May 1982 at about 09h00 and after the employers had left the house, the
deceased and Caroline were in the kitchen
with the
employers' small child
when the appellant appeared at
the..../ 4
4
the outer door. He asked the deceased for the key to her room because he
wanted to remove his belongings. She gave it to him. Apparently
the lock of the
door was fitted with a security device which he could not operate; he returned
to the kitchen and asked her to come
and help him. According to Caroline the
deceased left with the young child in her arms. Caroline followed and saw the
appellant strike
the deceased in the face at least three times before she could
open the door. Caroline testified that the deceased put the child
on the ground;
she, Caroline, bent down and picked up the child; when she came erect she saw
the appellant with a knife in his hand
and the deceased clutching
her chest;
the deceased said: "Caroline, he has stabbed
me .... / 5
5
me". The deceased ran into the kitchen and locked the door behind her. Her
body was later found on the floor of the kitchen. It was
common cause that she
died as a result of a "stab wound of the left lung".
The appellant was the
only witness for the defence. According to him the deceased came to the door of
the room without the child.
She refused to open the door and he slapped her once
only in the face with the open hand. Thereupon she unlocked the door and they
went into the room. He slapped her again and she took a knife out of a cupboard.
When she tried to stab him they struggled.
He pretended that he was going to
bite her hand,
she .... / 6
6
she released her grip on the knife and he took it
from her. He put the
knife under his belt so as to keep it out of her reach. She was stronger than he
was and she forced him out of
the room. His evidence about when they moved out
of the room is confusing and unsatisfactory. He described the manner in which
the
deceased was injured as follows:
"Yes, she pushed me outside. When we got outside I noticed she was intending to get hold of the knife. I then took it out and thought she would flee. After I had taken out the knife she came and we wrestled .... I fell and she fell on top of me. I just heard her saying: 'I am stabbed'. I got up and ran away."
During cross-examination he said twice that when
she rushed at him on the last occasion she wanted
to..../ 7
7
to strangle him. He also said that her last words were: "You have stabbed
me".
The trial Court found that Caroline had testified in a satisfactory
manner and that her evidence was reliable, pointing out that if
she had wanted
to lie she would have said that she saw the appellant stab the deceased. It was
suggested that Caroline bore the appellant
a grudge and had a motive for getting
him into trouble. In my view there was no acceptable evidence of such a grudge
or motive.
It was submitted on appeal that Caroline's evidence was
"contradictory, evasive, improbable and generally unreliable and amounted
to
a
reconstruction .... / 8
8
reconstruction of events". After considering all the evidence I have come to
the conclusion that not one of these allegations can
be substantiated.
Two
further arguments about Caroline as a witness should be mentioned. She was
severely criticised because she could not give an adequate
description of the
knife with which the wound was inflicted. Her explanation was that it was held
by the appellant in his hand and
she could not see the whole knife. The
importance of this evidence lies not in the appearance and nature of the knife
but in the
fact that it was in the appellant's hand immediately after the
wound
was inflicted and this fact was admitted by the
appellant .... / 9
9
appellant.
It was also argued that the Court a quo had permitted
Caroline "to give hearsay evidence of a very material fact". The complaint was
that she testified that the deceased
had said: "Caroline, he has stabbed me".
This argument was repeated by counsel for the appellant although it appeared
that, according
to Caroline, the statement was made in the presence of the
appellant and immediately after the stabbing. Furthermore the appellant
testified that the deceased had said: "You have stabbed me".
The Court a quo found that the
appellant's evidence was "most
unsatisfactory" and
rejected .... / 10
10
rejected it "as not being reasonably possibly true". In my view the record
contains sufficient material for the learned Judge's findings.
It was
submitted that the Judge a quo had committed an irregularity when he
intervened during the cross-examination of the appellant and referred to his
evidence of the
last struggle as a "fairy story". Admittedly this was not a well
chosen phrase. However, the story of a woman rushing at a man who
holds a
dangerous knife poised in his hand, with the intention of throwing the man down
on the ground and then throttling him while
standing over him does not bear any
marked resemblance to reality.
It .... / 11
11
It was submitted on behalf of the appellant that "an adverse inference should be drawn" from the State's failure to call the gardener who may have been present at some time during these events. It is difficult to understand this submission. At the conclusion of the State case the prosecutor informed the Court that the gardener, who was the third witness on the State's list, could not be traced by the investigating officer. The defence raised no objection to this statement, did not ask that the investigator should be called so that his inability to find the missing witness could be tested, and offered no evidence of where he could possibly be found. It is also significant that there was no indication of what the
nature .... / 12
12
nature of his evidence would have been. There is no,force in this
argument.
Another argument advanced was that the State had not called the
district surgeon to rebutt the appellant's version of how the wound
was
inflicted. At the start of the trial the defence admitted that the district
surgeon had conducted a post mortem examination and
that his findings were
correct. He was therefore not called as a witness and there was certainly no
onus on the State to call him.
Other general submissions which counsel made have
even less merit.
Finally, on a consideration of
the record of the trial and the arguments
advanced,
I ... / 13
13
I have come to the conclusion that the Court a quo correctly accepted the evidence of the single witness, Caroline. It was accurate, clear and reliable in every material respect. The Court a quo also correctly rejected the evidence of the appellant; it is not possible that it could reasonably be true. On an evaluation of all the evidence the Court a quo did not err in finding that the State had proved beyond reasonable doubt that the appellant was guilty of the murder of the deceased. The appeal cannot succeed.
The appeal is dismissed.
P.M. CILLIé, JA
JOUBERT, JA )
concur HOWARD, AJA )
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