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Case no 147/88
/MC
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION)
Between:
DUMA ERIC JAMA First Appellant
JULOLO NOGALA Second Appellant
MXOLISI MALGAS Third Appellant
MICHAEL MAMBUKWE Fourth Appellant
LULAMILE ANA MANELI .... Fifth Appellant
MYUYU NDAME .... Sixth Appellant
LUNGILE BACELA .... Seventh Appellant
DIZA NKOHLA .... Eighth Appellant
NKOSINATHI KAWA
.... Ninth Appellant
HENRY PIEDT .... Tenth Áppellant
- and -
THE STATE Respondent
CORAM: BOTHA, HEFER et VIVIER JJA.
HEARD: 14 March
1989.
DELIVERED:
30 March 1989.
JUDGMENT
VIVIER JA /
2.
VIVIER JA:-
During the night of 23 December 1985 a crowd of about 100 Blacks proceeded to the house of Nobanzi Yaze in Kubusi Township near Stutterheim. Asleep inside the house were Nobanzi, her daughter Nosisi Yaze, the latter's three children Nobelungu, Mziwabantu and Zamekaya, and another grandchild, Linda, the daughter of Nonceba Yaze. Members of the mob forced their way into the house, severely assaulted Nobanzi and finally poured petrol over her and her two daughters Nonceba (who had in the meantime been fetched from her own home by other members of the mob) and Nosisi and set them alight. Nobanzi's house was also set alight. All three women later died in hospital as a result of their burns.
Following upon these events the ten appellants (to
whom / ...
3. whom I shall individually refer as accused no's 1,
3, 4, 5, 9, 10, 11, 12, 13 and 14 respectively) together with six others (to
whom I shall refer as accused no's 2, 6, 7, 8, 15 and 16 respectively) appeared
in the King William's Town Circuit Local Division
before BECKLEY J and assessors
on three counts of murder and one count of arson. Despite their pleas of not
guilty all the appellants
were found guilty on all four counts. Accused no's 2,
6, 7, 8, 15 and 16 were found not guilty on all counts.
In respect of the
convictions of accused no's 4, 5 and 9 on the three counts of murder, the Court
a guo found that there were no extenuating circumstances. Consequently
each of these accused was sentenced to death on each of the three
counts of
murder. In respect of the convictions of
accused / ...
4. accused no's 1, 3, 10, 11, 12, 13 and 14 on the three
counts of murder the trial Court found that there were extenuating
circumstances,
and accused no's 1, 3 and 13 were each sentenced to 10 years'
imprisonment on each count; accused no's 12 and 14 were each sentenced
to 12
years' imprisonment on each count and accused no's 10 and 11 were each sentenced
to 14 years' imprisonment on each count. In
the case of all these accused the
sentences of imprisonment imposed on the three counts of murder were ordered to
run concurrently.
On the count of arson the appellants were each sentenced to 18
months' imprisonment which, in the case of accused no's 1, 3, 10,
11, 12, 13 and
14, was ordered to run concurrently with the sentences on the murder
charges.
With the leave of the Court a guo all the appellants
appeal/...
5. appeal to this Court against their convictions on
all the charges and accused no's 4, 5 and 9 also appeal against the findings
that there were no extenuating circumstances and the sentences of death which
were in consequence imposed upon them.
At the trial five eye-witnesses
testified on behalf of the state: Nobelungu Yaze and Linda Yaze, who were in
Nobanzi's house at the
time of the attack on the house, and Mandisa Stungu,
Ntombizanele Kawa and Nomakuthweni Jacob, who were members of the mob and who
were warned by the brial Judge as accomplices. For convenience I shall refer to
the first-mentioned two witnesses as well as to the
three deceased by their
Christian names and to the last-mentioned three witnesses by their surnames. The
appellants all
testified / ...
6.
testified in their own defende and they all denied that they
were present at the scene or at a meeting which, according
to Stungu and Kawa, was held just before the attack on
Nobanzi's house. Accocding to Stungu and Kawa it was
said at the meeting that Nobanzi and her two daughters hád to be burnt since Nobanzi was a witch.
The trial Court accepted the evidence of Stungu. She was found to be a more reliable witness than either Kawa or Jacob. The trial Couct nevertheless accepted portions of the evidence of the last-mentioned two witnesses. The trial Couct furthermore found that there were certain discre= pancies in the evidence of the other two eye-witnesses, Nobelungu and Linda, but, because they supported each othec in regard to the general outline of the events, certain portions
of / ....
7. of their evidence could be accepted as reliable. The trial
Couft rejected the evidence of the appellants, who all said
that they were at home at the relevant time. They were all
found to be unimpressive and evasive witnesses.
It is convenient to set
out first the evidence of Stungu, Kawa and Jacob. All three these witnesses
testified that on the night in
question they were fetched from their respective
homes after they had already gone to bed and that they were forced to accompany
the mob by those who fetched them. According to Stungu and Kawa they were first
taken to the meeting and from there to Nobanzi's
house, whereas Jacob's evidence
was thab she went with the crowd directly from her house to Nobanzi's house.
(All three witnesses
were
subsequently / ...
8. subsequently detained and were still in detention at the time they gave
evidence at the trial.)
Stungu, an 18-year old girl, testified that she was
fetched from her home just after eight o' clock that evening by three men,
Andile
Mlatu, Yekanje Kali and Teni Kawa and taken to the meeting which was held
near the local shop. About 100 people attended the meeting,
which lasted for two
and a half hours. It was said at the meeting that Nobanzi
must be burnt as she was a witch and that she had killed one
of the comrades. The crowd then proceeded to Nobanzi's home.
One person among the crowd carried a container with petrol.
Stungu identified the people she saw at the meeting
as well as the man who
carried the petrol by mentioning their
names/...
9.
names. Thus she mentioned the names of accused no's 1, 4, 5, 9 and 10 as people she saw at the meeting; the names of accused no's 4 and 5 as those who said that Nobanzi must be burnt and the name of accused no 10 (Myuyu) as the man who carried the petrol. When the prosecutor, however, asked her to point Myuyu out in Court she was not certain whether he was accused no 10 or accused no 15 and said that she was uncertain of Myuyu's face. She was then asked to point out the accused whom she saw at the meeting but whose names she did not know. Amongst those she pointed out was accused no 10. Shortly thereafter she re-affirmed that she was uncertain whether the person whose name was Myuyu, and whom she had seen at the meeting and alsó carrying petrol at Nobanzi's house, was accused no 10 or accused no 15. From subsequent evidence it became clear that in appearance accused no 15 did not resemble accused no 10 at all. In cross-examination she became certain that accused no 10 was the man she saw carrying the petrol but, to compound the uncertainty, later on said that it was not accused no 10, but indeed accused no 9 whom she saw carrying the petrol.
Stungu testified that when the mob arrived at
Nobanzi's/
10.
Nobanzi's house accused no 9 knocked on the
front door, which
was then opened. Accused no's 5, 9 and 10 were amongst
those
who entered the house. Teni Kawa and Yekanja Kali, carrying
whips,
also entered. Stungu was standing in front of
the crowd about 10 paces away
from the front door and had a clear view of the house from where she was
standing. Ntombizanele Kawa
was standing next to her. Stungu said that initially
only Nobanzi and Nosisi were present in the house. Some members of the mob then
went to fetch Nonceba and brought her to the house. Nobelungu, Linda and
the
smaller children were then forced out of the house; they
came out crying and ran away, and at the same time Stungu
saw accused no 10 pouring petrol over Nobanzi, Nosisi and .
Nonceba / ....
11.
Nonceba and setting them and the interior of the house
alight. Stungu then ran home. It was then between midnight and one o' clock.
Stungu said that she was arrested three days later and released after two days.
She was re-detained on 12 March 1986.
Stungu was cross-examined at length
about a letter and a note, both written by her while in detention. The letter,
which was handed
in as an exhibit at the trial, is headed "Viva Comrades" and
Stungu said that it was written in reply to a letter which she received
from one
of the accused. She intended it to be addressed to all the accused. In the
letter Stungu wrote that although she knew nothing
about the case she had been
told by Oates, the investigating
officer / ....
12. officer, that if she wanted to be released she
would have to give evidence for the state implicating the accused. When she
refused,
the police offered her money and also assaulted her. She assured the
accused in the letter that she would not testify against them.
Stungu used the
word "Comrades" three times in the letter to refer to the accused, yet in her
evidence at the trial she said that
she did not know what it meant and only used
it because it appeared in a letter she had received from one Raster, a fellow
inmate
at the prison where she was detained. She said that what she wrote in the
letter was false and that she had written it merely to
keep the conversation
going. She gave a
similar explanation for the note, which she wrote on a
piece
of / ....
13. of toilet paper to Raster. In the note she wrote that her body was
painful as a result of being assaulted by the police.
Kawa, who is a 16-year
old girl, testified that on the evening in question she was already in bed at
her house in Kubusi when accused
no's 10 and 11 arrived to call her to a
meeting. In her evidence-in-chief she said that upon leaving her house she saw
accused no's
4 and 5 outside but in cross-examination she said that she saw no
one outside her house and tnat she first saw accused no's 4 and
5 at the
meeting.
Kawa said that she recognised all the accused at the meeting. The
speakers at the meeting were accused no's 4, 5, 7, 9 and 10 and
they all said
that Nobanzi must be
burnt /
14. burnt because she had killed one Msokoli. From there the
crowd proceeded to Nobanzi's house and the witness, who was
at the back of
the crowd, went with them because accused no
1 and Teni Kawa said that no one
was to leave the group.
At Nobanzi's house Kawa remained standing at a
point behind the house from
where, the trial Court found,
it was impossible for her to have seen what
happened at the
front door of the house. The trial Court,
accordingly,
rejected her evidence of what happened there, but
still
accepted her evidence of the events up to the arrival of
the crowd
at Nobanzi's house. Her evidence of the events
at Nobanzi's house was that
accused no 9 knocked on the
front door, and when the door was opened a number of people,
including / ....
15. including accused no's 4, 8, 9, 10 and 12 entered the
house. Accused no 9 was carrying a container with petrol. Shortly afterwards
Nobanzi was brought out of the house, held by accused no's 4 and 12. The small
children of the house also came out and ran away.
She did not see Nosisi,
Nonceba, Nobelungu or Linda. Once Nobanzi was outside, accused no 9 poured
petrol over her and accused no
12 set her alight. Kawa then ran away. She was
arrested a few days later, released and then re-arrested on 12 March
1986.
Jacob, a 15-year old girl,testified that she was taken directly from
her own house to Nobanzi's house by Teni Kawa and accused no's
3, 9 and 14.
Outside her house she saw nine othec people, including accused no's 10, 11,
12
and / ....
16. and 3. On their way to Nobanzi's house they were joined by another group of people. At Nobanzi's house she stood in front of the house next to Stungu and Ntombizanele Kawa. She saw Teni Kawa and accused No's 9, 10 and 11 knocking on the door. The door was opened and Nobanzi was dragged outside by Teni Kawa and accused No's 10 and 11. Accused no 10 poured petrol over her from a container and accused no 11 struck a match and set her alight. Accused No's 10 and 11 thereupon entered the house and when they came out it was on fire. The witness ran home. At no stage did she see any of Nobanzi's children or grandchildren. She only heard them crying.
At a late stage in her evidence-in-chief, Jacob
said / ....
17. said that accused no 4 was in the group which fetched her. Counsel for
the state thereupon informed the trial Court thát
she had not mentioned
accused no 4 in her statement to the police. The trial Court did not accept
Jacob's evidence on this aspect.
I come now to the evidence of Nobelungu and
Linda who were asleep inside Nobanzi's house when the mob arrived there.
According to
Nobelungu, who is a 14-year old girl, she was awakened at about one
o'clock in the morning when Nobanzi screamed. She saw the front
door open and
many people at the door. Linda was busy lighting the lamp. She heard people
outside calling Nobanzi a witch and that
she should come outs'ide. Three boys,
wearing balaclavas
which /
18. which covered their faces, entered the house and
started assaulting Nobanzi with whips. She heard a bottle being shaken outside
and someone, whom she identified as accused no 9, said that the way to get
Nobanzi out of the house was to pour petrol over her.
Petrol was then poured
over the bed and the bed set alight. At some stage Nobelungu saw accused no 9 at
the door. After the bed was
set alight Nosisi, followed by the four children,
ran away. Outside the house petrol was thrown over Nosisi, her night clothes
caught
fire and she ran away in the direction of an outside toilet.
Nobelungu
testified that she and Linda ran to Nonceba's house to tell her what had
happened. As they came to the
house / ....
19.
house they met accused no 15. There were many people at
Nonceba's house. Accused no 15 hit her with a whip and she heard him say that
he
and the others still had to go and fetch Nonceba. She and Linda thereupon ran to
the river and much later they went to Nonceba's
house. Shortly thereafter
Nobanzi, Nosisi and Nonceba arrived. All three of them were badly burnt. Linda
went to call an ambulance
and the three women were later taken to
hospital.
Nobelungu's evidence thus far was accepted as reliable by the trial
Court, despite the fact that two further portions of her evidence,
directly
implicating accused no's 2, 10 and 11, were rejected. The first portion related
to a conversation in the house of the mother
of accused no 11 which Nobelungu
said
she / . ..
20.
she overheard that afternoon fromoutside the adjoining house of Nonceba. She said that she heard accused no's 10 and 11 telling the latter's mother that Nobanzi and her daughters were to be burnt. She testified that she told Nonceba what she had overheard and that Nonceba and her husband then went to tell Nobanzi. Linda was present when they told Nobanzi about the conversation. Linda, however, testified that she knew nothing about the alleged conversation and added that at the time Nonceba's husband was away in Johannesburg.
The second portion of Nobelungu's evidence which was not accepted by the trial Court also related to an incident which took place that afternoon. She testified
that / ....
21. that accused no 2 came to Nobanzi's house and asked her (Nobelungu) to attend a meeting. She left with Linda to go to the meeting but on their way they met a woman called Nobini who said that girls were not allowed at the meeting, so they turned back and went home. Linda's evidence on this aspect, which was also rejected by the trial Court, was that shortly after five o' clock that afternoon accused no 2 approached her at Nobanzi's house and told her that she was being called to a meeting. Nobelungu did not accompany her. On the way she met Nobini and returned home when the latter said that girls were not allowed at the meeting. In his judgment, rejecting the evidence of Nobelungu and Linda on this aspect, the trial judge said that it was
unlikely/....
22.
unlikely that the two girls would have been asked to attend a
meeting where the burning of their mothers and grandmother was to be
discussed.
Linda, a 17-year old girl, testified that she was
woken on the
night in question by Nobanzi who told her to
open the door as someone had
knocked. She
opened the top half of the door and saw a crowd of more than 100
people standing outside. Accused no 1 was standing in front of thei
door. . She
was shocked and closed the door but it was kicked down. About eight persons,
including accused no 1, entered the house
and started assaulting Nobanzi and
Nosisi with whips. The intruders were not wearing balaclavas as Nobelungu had
said. They later
left /...
23.
left the house and immediately afterwards a fire started near the door. She then ran out and in doing so, sustained burns to her left shoulder and hand. She identified accused no's 2, 10 and 11 as members of the mob whom she saw standing in front of the house. She saw Nosisi near the outside toilet. She was aflame. She ran with Nobelungu to Nonceba's house and on the way they came across another group armed with whips. Accused no 15, who was among the group, assaulted Nobelungu with a whip. They ran to the river where they waited for a while before going to Nonceba's house. Linda's evidence of the events of that night was accepted by the trial Court.
The Court a guo found that all the appellants
attended/....
24. attended the meeting described by Stungu and Kawa. The Court further found that a unanimous decision was taken at the meeting to burn Nobanzi, Nosisi and Nonceba, and that all the appellants then accompanied the crowd to Nobanzi's house and were present there in the furtherance of this common purpose. (In the case of accused no's 2, 6, 7, 8, 15 and 16 the trial Court held that, although they attended the meeting, there was no evidence that they were present at Nobanzi's house and that they should accordingly be found
not guilty.)
In view of these findings the Court did not determine
the extent of any of the appellants' participation in the meeting
or in the events at Nobanzi's house for, as BECKLEY J said in
the/.......
25.
the judgment:-
"(we) find on the authority of R v Dladla, 1962(1) SA 307 (A), and the other authorities cited and referred to in BURCHELL & HUNT 'South African Criminal Law and Procedure' Volume 1, at 434 and following, that the mere presence at the meeting and accompanying the crowd to Momhlambo's house, well knowing what the purpose of the journey to her house was, and what had been said at the meeting, is sufficient to establish participation in the common purpose."
In my view there are obvious flaws in the Court's
findings. Firstly, there is no evidence of a decision
actually being taken at the meeting. It is true that Stungu
testified that accused no's 4 and 5 spoke at the meeting and
said that Nobanzi and her daughters must be burnt, and that
Kawa testified that accused no's 4, 5, 7, 9 and 10 addressed
the / ...
26.
the meeting to similar effect. But even if this
evidence
were to be accepted (its reliability will be considered later),
there is nothing to show that any decision was taken at the meeting.
Admittedly,
on Stungu and Kawa's evidence, no one present at the meeting voiced an objection
to what accused no's 4, 5, 7, 9 and
10 allegedly said but, as will presently
appear, this does not justify an inference that their declamation: met with
general approval.
Secondly, assuming that every member of the crowd knew what
was about to happen when the meeting broke up and the journey to Nobanzi's
house
commenced, the inference is again not justified that every one of them was in
agreement with or approved of the crimes which
were about to be
committed, or that every one who set out on the journey thereby
manifested his association with its criminal purpose. This
is illustrated by the fact that the three state witnesses Stungu, Kawa and
Jacob/
27.
Jacob, were forced against their will to attend the
meeting (in the case of the former two) and to accompany the orowd to the
scene of the murders (in the case of all three). According
to their evidence
they did not agree
with what was being said at the meeting and did not
associate themselves with the crowd, yet found themselves among the crowd at the
scene of the ccimes. There can be no sugges= tion that they were liable for what
happened at Nobanzi's
house. The requirements for holding an accused liable for the acts of a crowd
on the basis of a common purpose shared with the crowd,
were fully dealt with in
two recent decisions of this Court. See S v Safatsa and Others 1988(1) SA
868(A)
at 893-901 and S v Mgedezi and Others 1989(1) SA 687(A).
In /
28.
In Mgedezi's case BOTHA JA said the following at pp 705 I - 706 B :-
"In the absence of proof of a prior agreement, accused No 6, who was not shown bo have contributêd causally to the killing or wounding of the occupants of room 12, can be held liable for those events, on Lhe basis of the decision in S v Safatsa and Others 1988(1) SA 868(A), only if certain prereguisites are satisfied. In the first place, he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the assault on the inmates of room 12. Thirdly, he must have intended to make common cause with those who were actually perpebraking the assault. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the ofhers. Fifthly, he must have had the reguisite mens rea; so, in respect of the killing of the deceased, he must have
intended / ....
29.
intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue."
All these requirements had to be proved beyond a reasonable
doubt in the case of each accused. Assuming the sufficiency
and reliability of the evidence relating to the first two (a question which will be considered later) it is, for the
reasons previously stated, abundantly clear that the third
and fourth requirements could, in the circumstances of the
present case, not be established by proof merely of the
appellants' presence at the meeting and later at Nobanzi's
house, even though they might have gone to the house with
the rest of the crowd knowing full well of the crimes which
were about to be perpetrated there. It is only by positive
proof/....
30.
proof of the acts of each individual appellant, either at the meeting or at the house, that the third and fourth requirements could be established. It was therefore necessary for the trial Court to examine the evidence against each individual accused. This the trial Court did not do and it is accordingly necessary for this Court to consider the reliability of the evidence against each individual appellant in order to determine his liability for the crimes.
The trial Court rejected portions of the evidence
of/....
31.
of four of the five eye-witnesses who testified for
the
state, not merely because it was considered unsafe to rely
thereon,
but because the evidence was not believed. So,
for example, the evidence of
Nobelungu and Linda that accused
no 2 called them to a meeting that
afternoon, was not believed.
Their irreconcilable versions of what was
supposed to
have happened, show, in my view, that they were not being
truthful. Nobelungu's evidence concerning the conversation
she overheard that afternoon was similarly not believed. The trial Court disbelieved Kawa's evidence
concerning the events at Nobanzi's front door because the Court held that from where she stood behind the house she could not see the front of the house. The trial Court seems to have
lost/...
I
12.
lost sight of the fact that, if Kawa stood behind the house,
the evidence of Stungu and Jacob that Kawa stood next to them in front
of the
house and a few paces away from the front door, could not be correct. The trial
Court also disbelieved Jacob's evidence that
accused no 4 was in the group which
came to fetch her at her home.
The evidence of Nobelungu and Linda was
accepted, despite the fact that they were partially disbelieved, because the
trial Court found
that they supported each other in regard to the general
outline of the events. I fail to see how thêir agreement on the general
scheme of the events could be a safeguard for their reliability in implicating
individual accused. Moreover, there is an irreconcilable
conflict/....
33.
conflict between their version and that of Stungu regarding
the sequence of events. According to the latter, Nonceba was brought to
Nobanzi's house by members of the mob and the three
woman were then set
alight together. According to the version of Nobelungu and Linda, however,
Nosisi was already aflame when they
ran away at a stage before Nonceba had been
brought to Nobanzi's house. It is not possible to say which of these versions is
correct,
so that a serious doubt is necessarily raised about the reliability of
all three these witnesses.
There are other weaknesses in the evidence of
Nobelungu, Linda, Jacob and Kawa, apart from the fact that portions of their
evidence
were rejected by the trial Court. I mention only a few.
The / ....
34.
The trial Court based the conviction of accused no 1 on Linda's evidence that she saw him standing outside the front door of Nobanzi's house and that he entered the house with about seven others who assaulted Nobanzi and Nosisi with whips. She was the only one of the State witnesses who saw accused no 1 at the scene. Her evidence that the faces of this group were uncovered,conflicted with that of Nobelungu who said that the faces of the group who came into the house and assaulted Nobanzi with whips were covered with balaclavas. The trial Court appears to have avoided this conflict by relying on Linda's evidence that she saw accused no 1 standing outside the front door. Linda, however, also identified accused no 2 as one of the
men/...
35.
men she saw outside Nobanzi's house. She saw accused
no's 1 and 2 at the same time. Accused no 2 was acguitted,
no doubt because the trial Court did not regard Linda's identification of him
as sufficiently reliable. For the same reason her identification
of accused no 1
must also be suspect, particularly if regard is had to the circumstances under
which it was made and the absence
of any corroboration for her
identification.
Accused no's 3, 12, 13 and 14 were found guilty on Jacob's
evidence. Apart from Kawa's evidence that she saw accused no 12, which
was
rejected by the trial Court, there was no direct evidence that any of these
accused were at Nobanzi's house. Jacob never said
that she saw them there.
Her / ....
36.
Her evidence, it will be recalled, was that Teni Kawa and accused no's 3, 9 and 14 fetched her from her home and that she saw accused no's 12 and 13 outside her house. She said that they all proceeded to Nobanzi's house, being joined on the way by another group of people. Whether accused no's 3, 12, 13 and 14 in fact arrived at Nobanzi's house is not clear.
Accused no 4 was not seen by any one of the'state witnesses, except Kawa, at
Nobanzi's house.
This brings me to Stungu's evidence that she saw accused
no's 5, 9 and 10 at the scene of the crime. It will be recalled that initially
she knew the name but not the face of accused no 10, and was, therefore, unable
to point him out
in/....
37.
in Court, but that she nevertheless pointed out accused no 10
as one of the persons she saw at the méeting. This, in my view, is
destructive of her reliability as far as the identification
of accused no 10 is
concerned. She first said that accused no 10 was the man who carried the petrol
but later changed her evidence
and said that it was accused no 9 and not
accused no 10 who had
the petrol. Her identification of accused no 9 is thus
also
doubtful. When this evidence is considered against the backgrour
of
the letter in which she stated that she knew nothing about
the case and her
obviously untruthful evidence regarding her use
of the word "comrades" in the
letter, it is quite clear that the
trial Court erred in regarding her as a
reliable witness.
For these reasons I am of the view that the State
evidence identifying the individual appellants as members of
the / ....
38.
the mob present at the scene where the crimes were being
committed, was so thoroughly unreliable that it should
have been rejected
in toto by the trial Court. For the
same reason Stungu and Kawa's
evidence relating to the conduct
of accused no's 4, 5, 7, 9 and 10 at the
meeting should not
have been accepted. It will be recalled that, according
to
both these witnesses, accused no's 4 and 5 (and, according to
Kawa accused no's 7, 9 and 10 also) told the meeting that
Nobanzi and her daughters had to be killed. In view of the
unreliability of the only two state witnesses to the events
at the meeting it is not necessary to determine the liability
of the accused in question arising from what they allegedly
said.
In /
39.
In my view the trial Court further erred in its
approach to the evidence of the appellants. The trial Judge
in his judgment, after having summarised first the evidence
given by each
of the State witnesses and then the evidence
given by and on behalf of each
of the accused, commenced his
reasoning by saying that a prior meeting must
necessarily
have been held where the events were planned, despite the
fact
that the accused denied all knowledge of it. The
learned Judge then dealt
with the evidence of the accused
as follows :-
"We also find that the evidence of all the accused regarding their alibis must be rejected. Apart from the fact that all the accused failed to impress the
Court /
40.
Court as honest witnesses, and apart from the fact that we found them all to be extremely evasive. Except in the case of accused no 2, no alibi was disclosed before the respective accused was called as a witness and cross-examined. Despite the fact that there were many opportunities to do so, namely firstly for the first incident when they were arrested, thereafter when they were asked to plead in the magistrate's court; and also when the bail application was brought in the Magistrate's Court in Stutterheim,
It is also significant to note that nothing was put in cross-examination to Sergeant Oates, the Investigating Officer, regarding the disclosure of theic alibis, or some indication as to where they had spent the night of 23 December. We find it extremely unlikely that with the exception of accused no 2, all the accused would have spent the entire night at home and that although there is no onus on any of the accused to prove their alibi, that not a single member of any family of any of the accused was called to corroborate his version in this court."
Although the learned Judge went on to express brief criticism in respect of the individual accused, it is quite clear that the reasoning in the passage quoted above formed
the / ....
41. the basis for the trial. Court's rejection of the evidence
of each individual accused. To adopt such a global view of
the totality of the defence cases in order to reject the
evidence of an individual accused, is not permissible and constitutes a serious misdirection. In Mqedezi's case BOTHA JA, dealing with a similar approach adopted by the trial Court in that case, said the fóllowing at p 703 B-F:-
"A view of the totality of the defence cases cannot legitimately be used as a brush with which to tar each accused individually, nor as a means of rejecting the defence versions en masse. The global view taken by the trial Court of the defence cases led it to draw two inferences: (a) that each accused was present at
the scene and participated in the execution of the
threat against the
mpimpi's; and (b) that the
defences of all of them were false beyond
reason=
able doubt. With respect, as a matter of simple
logic I consider
both inferences to be wholly
insupportable. First as to (b):
an/....
42.
an explanation given in evidence by an individual accused for his unawareness of the relevant events in the compound whilst these were taking place cannot logically be rejected on the grounds that
all the other accused professed similar unawareness for different reasons and that it is unlikely that all of them could in fact
have been so unaware; The trial Court
erred by precluding itself from performing its duty to consider the evidence of each accused separately and individually, to weigh up that evidence against the particular evidence of the individual State witness or witnesses who implicated that accused, and upon that basis then to assess the question whether that accused's evidence could reasonably possibly be true."
Mr Redpath, who appeared ou behalf of the State, finally submitted that the
conviction of accused no 1 should be upheld on the basis
of a letter which he
had caused to be written to the trial Court and in which he admitted his guilt.
The letter was written after
accused no 1 had been convicted
and during the
enquiry into the question of extenuating
circumstances/....
43.
circumstances. Accused no 1 did not give evidence in
extenuation and the letter was handed in by counsel who appeared for him at the
trial. In the letter accused no 1 said that he had assisted a certain business
rival of Nobanzi in perpetrating the crimes and that
none of the other accused
had anything to do with it. Since accused no 1 did not give evidence in
extenuation the letter could not
be tested, and I doubt whether any weight could
be attached to it. It may well be that accused no 1 took all the blame upon
himself
in order to exculpate the other accused. In my view it would be
dangerous to base a conviction on the letter.
For these reasons I am of the
view that all the appellants were wrongly convicted on all four counts. The
appeals / ...
44.
appeals of all the appellants against the convictions and
sentences on three counts of murder and one count of arson
are accordingly allowed. The convictions and sentences of all the appellants are set aside.
W. VIVIER JA.
BOTHA JA)
Concur. HEFER JA)
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