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303/82
N v H
JEFFREY MALULEKE First
Appellant
SIMON NDLOVU Second Appellant
and
THE
STATE Respondent
SMALBERGER, AJA :-
303/82
N V H IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between :
JEFFREY MALULEKE First Appellant
SIMON NDLOVU Second
Appellant
and
THE STATE Respondent
CORAM: WESSELS, VILJOEN,
HEFER, JJA,
et GALGUT, SMALBERGER, AJJA
HEARD: 15 AUGUST 1984
DELIVERED: 6 SEPTEMBER 1984
JUDGMENT
SMALBERGER, AJA :-
The two appellants were convicted of
murder, with extenuating
circumstances, by a Judge
sitting /
2 sitting alone in the Witwatersrand Local Division. They were
each sentenced to six years' imprisonment. The trial Judge refused
the
appellants leave to appeal against their convictions, but such leave was
subsequently granted on petition to the Chief Justice.
It is common cause
that one Patrick Lucas Mabunda (the deceased) was fatally stabbed during the
night of the 20th to the 21st September
1981 in the backyard of the house of a
certain Tommy Mabaso in Soweto, Johannesburg. The essential issues at the trial,
as well as
on appeal, related to the identity of the deceased's assailant or
assailants, and the causal connection between the assault or assaults
upon him
and his death. In order to determine whether the appellants
were /
3 were correctly convicted it is necessary
to consider the evidence in some detail.
The main witness for the State was a
sixteen year old girl, Cecilia Makhubela. On the afternoon of Sunday the 20th
September 1981
she went to the house of Tommy Mabaso where a stockvel, which had
commenced the previous Friday, was in progress. She was in the
company of the
deceased, who was her boyfriend at the time, and one Sylvia Maluleke. According
to Cecilia, she and the deceased partook
of liquor during the course of the
afternoon and evening at the party. They each drank an approximately equivalent
quantity of liquor.
The two appellants were also present at the
party /
4 party. They arrived there after Cecilia and her companions.
Late that night, or in the early hours of the following morning, Cecilia's
evidence not being entirely clear on this point, Cecilia, Sylvia and the
deceased left the house through the kitchen door in order
to go to the toilet in
the backyard. The evidence shows this backyard to have been three paces in
width, with the toilet eight paces
from the kitchen door. Cecilia testified that
she walked in front with the deceased diagonally behind her. While they were so
walking
the second appellant came running out of the kitchen with a knife in his
hand and stabbed the deceased twice on his chest. The first
appellant,
also /
5 also with a knife in his hand, followed a short distance
behind, and stabbed the deceased once on his chest as he ran past him.
The two
appellants then together ran from the property via an opening in the back fence.
After being stabbed the deceased ran into
the house where he collapsed.
According to Cecilia the first appellant, who is Sylvia's brother, was well
known to her prior to the
incident; the second appellant she had never seen
before that day at the party. Cecilia initially testified that Sylvia was behind
the deceased when the stabbing took place. Later in her evidence she displayed
uncertainty as to precisely where Sylvia was, although
the overall impression
gained from her evidence was that she was somewhere in the backyard and thus in
a
position /
6 position to see what had occurred. No
reason for the stabbing of the deceased is apparent from Cecilia's evidence.
Cecilia also
testified to the arrest of the first appellant on Monday afternoon
after she had pointed him out to the witness Michael Modau. She
stated that
after his arrest the first appellant had been searched and a knife found in his
possession. The above is Cecilia's evidence
in broad outline.
Sylvia
confirmed in evidence that she had been at the party with Cecilia and the
deceased, and that she had left the house with them
to go to the toilet.
According to her she went into the toilet
leaving / .
7 leaving Cecilia and the deceased standing outside. She heard nothing while she was in the toilet. When she came out of the toilet, she saw the two appellants running out of the backyard together through a gap in the back fence. She did not see their faces, but she was able to identify them by their build and their clothing. The first appellant is her brother. The second appellant is his friend, and is well known to her. When she saw them they were about three to four metres away from the deceased. She did not observe
any weapons in their possession, nor did she see any
that stabbing take place. Sylvia testified when she emerged
from the toilet Cecilia screamed, and the deceased ran
into the house where he collapsed. Her evidence also
provides /
8 provides no reason for any assault upon the deceased. The
State witnesses Moses Mashele and Tommy Mabaso were not able to shed any
light
on the actual stabbing. The former testified that he was at the party in the
company of the two appellants. At a certain stage
he noticed that the two
appellants had left the house. It was shortly after this that the deceased
entered the house from outside
with injuries on his chest. He accompanied the
deceased to the hospital, where the deceased died on arrival. The witness stated
at
one time in his evidence that the two appellants had left the house together.
He appears, however, to have assumed this from the
fact that they were friends,
for it is apparent from his evidence that
he did /
9 he did not actually see them leave, and therefore could not
say whether they left together, or in what order they left. Apart from
confirming that the State witnesses and the two appellants were present at the
party at his house Tommy Mabaso was unable to give
any helpful evidence
concerning their movements.
Michael Modau testified to the arrest of the
first appellant on the Monday afternoon. He stated that Cecilia pointed out the
first
appellant to him. He approached the first appellant and asked him whether
he was the person who had killed the deceased. The first
appellant's response to
his question was to draw a knife. Subsequently the first appellant was over=
powered and arrested. This knife
- an Okapi - was
later /
10 later handed to the police, but was unfortunately mislaid and
could not be produced at the trial.
The post mortem examination,of the
body of the deceased revealed that the deceased had been stabbed three times in
the chest, and that the cause
of his death was stab wounds of the right and left
lungs, and of the heart. Dr Nielsen, who performed the post mortem examination,
was unable to attribute death to any one stab wound, and concluded that all
three wounds contributed to the deceased's death. She
further stated that all
three wounds, despite their differing external appearance, could have been
caused by the same knife. A blood
sample taken from the deceased revealed, on
analysis, an alcohol content of
15 grams /
11
15 grams per 100 millilitres of blood, the
equivalent of eight tots of strong liquor.
Both appellants gave evidence.
They admitted having been at the party at Tommy Mabaso's house, and having
consumed a number of beers
between them. The first appellant testified that when
the time came for them to leave, he left ahead of the second appellant. They
had
arranged that he would wait for the second appellant outside. The first
appellant testified that on leaving through the kitchen
door he saw the deceased
and Cecilia in the backyard. They were near the kitchen door. There was no one
else in the yard. He walked
along a passage adjoining the house to the street in
front of the house where he
waited /
12 waited for the second appellant. He
was later joined in the street by the second appellant, after which they each
went to their
respective homes. The first appellant disavowed all knowledge of
an assault upon the deceased, or his participation therein. He admitted
having
been arrested on Monday afternoon by Michael Modau and others, but in
circumstances differing substantially from those deposed
to by that witness. He
denied having had a knife in his possession, or threatening Michael Modau with
one. It is not necessary to
consider the evidence in this regard in any greater
detail.
The second appellant tells a very different story. He admitted that
the first appellant left
the /
13 the house before him, but denied that there was any agreement that they would meet outside. He stated that when the first appellant failed to return he went to look for him. In the backyard he found the first appellant, with a knife in his hand, about to stab the deceased. He intervened and was stabbed on the hand by the first appellant. Cecilia, who was also in the yard, then screamed. The first appellant ran away, and he followed. They ran through the opening in the back fence. They were chased by people who had been present at the party. They made good their escape, and ultimately went home. He denied having been in possession of a knife, or having stabbed the deceased.
The /
14 The trial Judge accepted the evidence of Cecilia, Sylvia and
Michael Modau and rejected that of the two appellants. He found that
both the
appellants had stabbed the deceased, as deposed to by Cecilia, and that the
assault by each on the deceased was causally
linked to the deceased's death. He
accordingly convicted both the appellants of murder, but found that there were
extenuating circumstances
present.
The evidence establishes that, apart from
the deceased himself, the only persons present in the back= yard of Tommy
Mabaso's house
when the deceased was stabbed were Cecilia, Sylvia and the two
appellants. In this respect the evidence of Cecilia and Sylvia
identifying /
15 identifying the two appellants was rightly accepted by
the trial Judge. There is no need to consider all the evidence led concerning
the available lighting in the backyard at the relevant time. Suffice it to say
that the evidence establishes that there was sufficient
light in the backyard to
permit of reliable identification of the persons present in it. The honesty of
Cecilia and Sylvia's identification
of the two appellants is not in issue. The
reliability of such identification is enhanced by the fact that the first
appellant was
well known to both witnesses, and the second appellant was well
known to Sylvia. In addition both appellants had for a substantial
period prior
to the stabbing of the deceased been in the same room at the party as
Cecilia /
16 Cecilia and Sylvia, and had been
observed by them there. These considerations reduce the risk of incorrect
identification (R v Dladla and Others 1961(1) SA 307 (A) at 310 B - E).
Furthermore, the second appellant places both himself and the first appellant on
the scene at the
relevant time. Even the first appellant admits his proximity to
the scene, if not his presence on it. Neither appellant suggested
that there
were any other persons on the scene who may have been responsible for stabbing
the deceased.
It follows logically, in the absence of any suggestion that
either Cecilia or Sylvia were responsible for stabbing the deceased, that
the
deceased could only
have /
17 have been stabbed by one or other of the
appellants, or both of them. If the evidence justified a finding that the
deceased was
stabbed pursuant to a common agreement between the two appellants
to assault him,
it would not have mattered if both or only one of them had
stabbed him, for each would be liable for the act of the other done in
persuance
of a common design (S v Shaik and Others 1983(4) SA 57 (A) at 65 A).
However, the trial Judge specifically found that it had not been proved that the
two appellants had "acted
in conjunction with each other after any prior
arrangement". Accepting the correctness of this finding the guilt of each
appellant
has to be determined on the basis that each is answerable only for his
own conduct (S v Mbambo
1965(2) /
18 1965(2) SA 845 (A) at 852 H - 853 A). What must therefore
be determined, in the first instance, is whether the State established
beyond
all reasonable doubt that both the appellants stabbed the deceased. Only
thereafter is it necessary to enquire whether the
conduct of each appellant was
causally linked to the deceased's death. The former enquiry poses the question
whether the trial Judge
was correct in accepting Cecilia's evidence that both
the appellants stabbed the deceased.
In respect of Cecilia's evidence the
trial Judge said the following:-
" Having /
19
"Having sketched these "introductory aspects of the evidence, we come to the fact that Cecilia Makhubela is a single witness as to the actual assault on the deceased and his killing. She is a 16 year old girl who had consumed a substantial quantity of liquor that night and in her evidence in Court she was sometimes hesitant in certain minor respect contradicted herself and I regard her only as a single witness on whose uncorroborated evidence I would not be prepared to convict.
I find, however, that the broad outlines of Cecilia's evidence give a rational picture of what occurred at the fatal moments in this matter, and in as far as she is corroborated by acceptable evidence, I am prepared to accept her evidence."
As a single witness to the participation of
both
appellants in the stabbing of the deceased Cecilia's
credibility would
normally fall to be assessed in keeping
with the principles enunciated in
S v Sauls and Others
1981(3) /
20
1981(3) SA 172 (A) at 180 E - H to the effect that :-
"There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness (see the remarks of RUMPPF JA in S v Webber 1971(3) SA 754 (A) at 758). The trial Judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told. The cautionary rule referred to by DE VILLIERS JP in 1932 may be a guide to a right decision but it does not mean
'that the appeal must succeed if any criticism, however slender, of the witnesses' evidence were well founded'
(per SCHREINER JA in R v Nhlapo (AD 10 November 1952) quoted in R v Bellingham 1955(2) SA 566 (A) at 569). It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense."
Corroboration /
21 Corroboration, in its correct legal sense of independent testimony which confirms the evidence of a witness, is not an essential legal requirement for the acceptance of the evidence of a single witness. It is doubtful whether the trial Judge had corroboration in that sense in mind when he expressed himself in the manner quoted above. If he did, then his treatment of the evidence shows that he sought corroboration of Cecilia's evidence only in relation to her identification of the two appellants as the deceased's assailants. On this issue she was amply corroborated. The trial Judge appears to have been satisfied with Cecilia's evidence that there were two assailants, and that both stabbed the deceased. Cecilia was undoubtedly in a
favourable / .......
22
favourable position to observe what
occurred.
Trenchant criticism was directed at Cecilia's evidence in argument.
A number of minor contradictions are apparent in her evidence,
but they are of
no real consequence. There are aspects of her evidence which suggest that she
was liable at times to make assumptions
and reconstruct events. This is to be
expected to some extent in the case of a youthful witness pressed for details of
events which
occurred a long time ago, and of which she is unlikely to have
retained a perfect recollec= tion. The quantity of liquor she had
consumed, the
speed at which the events occurred, making accurate observation difficult, and
the fact that her evidence
does /
23 does not entirely coincide with that of Sylvia, are further
factors which tend to cast doubt on her evidence. It was also argued
that the
trial Judge accepted the evidence of the two appellants that the first appellant
left the house before the stabbing ahead
of the second defendant, contrary to
Cecilia's evidence in this regard. There is a passage in his judgment which
suggests this to
be the case, but on a proper assessment
of that passage in
the context of the judgment as a whole it does not appear that the trial Judge
in fact made such a finding. Although
he may not have mentioned them all in his
judgment, the trial Judge must have been alive to the criticisms and
considerations that
have been mentioned.
He /
24 He was none the less satisfied that
Cecilia told the truth.
Apart from falsely denying that he was not present at
the scene of the stabbing, the first appellant tells an unlikely story as to
why
he left the house ahead of the second appellant and waited for him in the street
outside. He was further shown to have been untruthful
concerning the events
which occurred at the time of his arrest on the Monday afternoon. Although the
versions of Cecilia and Michael
Modau differ in an important respect in this
regard, the trial Judge accepted the evidence of Michael Modau that the first
appellant's
response to being asked if he was the person who had
killed /
25
killed the deceased was to draw a knife. Modau
was better placed than Cecilia when witnessing this incident, and his evidence
therefore
more acceptable than hers. The first appellant's reaction, in the
circumstances, constituted an admission by conduct (Hoffman and
Zeffert: South
African Law of Evidence 3rd Ed at p 154) and serves as confirmation of Cecilia's
evidence of the first appellant's
involvement in the assault upon the
deceased.
Although the second appellant appears to have made a reasonably
favourable impression on the trial Judge, his evidence was rejected
because of
the blatant lie he told about the injury to his one hand, and the
further /
26 further lies in which he became enmeshed as a result
thereof. That he lied in these respects was conceded. It was argued that it
did
not follow that because the second appellant lied in relation to his hand injury
he necessarily lied throughout his testimony
(cf. S v Oosthuizen 1982(3)
SA 571 (T) at 577 A ), and that the trial Judge erred in rejecting his evidence
as not reasonably possibly true. The second
appellant's evidence is not wholly
inconsistent with the State case. The lie concerning his hand, however, was a
material one, and
undermined his whole defence. Nor was it the only respect in
which he lied. His evidence that he went to look for the first appellant
after
the latter had left the house and failed to return suggests a reasonable
lapse /
27 lapse of time between the emergence of first the one and then
the other appellant from the house. This is not in keeping with the
evidence of
Cecilia and Sylvia. Their evidence, which was accepted, establishes that the two
appellants came out of the house, if
not together, then shortly after each
other. From this one can infer that the second appellant tried falsely to
distance himself
from the initial events in the backyard. The second appellant
also claims that he and the first appellant ran away chased by people
wielding
golf clubs. This allegation is totally at variance with the State evidence, and
falls to be rejected. In the circumstances
the trial Judge was entitled to
reject the second appellant's
evidence / . ...
26 evidence as not reasonably
possibly true.
On a conspectus of the evidence as a whole I am unpersuaded
that the trial Judge erred in accepting Cecilia's evidence that the two
appellants stabbed the deceased in the manner deposed to by her, and rejecting
the evidence of the two appellants to the contrary.
The nature and site of
each wound on the deceased proves beyond all reasonable doubt that each blow was
delivered with the necessary
intent to kill. This was not seriously disputed. As
previously mentioned, Dr Nielsen testified that all three wounds contributed
to
the deceased's death. It was conceded on behalf of the
second /
29 second appellant (but not on behalf of the first appellant)
that Or Nielsen's evidence, if accepted, established the necessary
causal link
between each wound inflicted on the deceased and his death. This concession was
correctly made. (S v Thomo 1969(1) SA 385 (A) at 397 G - H.) There is no
reason to doubt the correctness of Dr Nielsen's evidence. As both appellants
stabbed
the deceased, and each wound contri= buted to his death, both appellants
are legally responsible for his death. They were accordingly
both correctly
convicted of murder with extenuating circumstances.
In the /
30 In the result the appeals are dismissed.
J W SMALBERGER ACTING JUDGE OF APPEAL
WESSELS, JA ) VILJOEN, JA ) HEFER, JA ) CONCUR
GALGUT, AJA )
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