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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

CASE NO: CA&R 270/2011

Date Heard: 13 June 2012

Date Delivered: 29 November 2012

NOT/REPORTABLE

In the matter between:

SIBUSISO GUBU ...............................................................................................Appellant

and

THE STATE ...................................................................................................Respondent

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JUDGMENT

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GOOSEN, J:

1. The appellant was charged with and convicted of the murder of the deceased, Zwelinzime Mayinje. He was also charged with assault with the intent to do grievous bodily harm in which the complainant was one Bonisile Bobo. At the close of the State case the appellant was discharged on the count of assault. He now appeals against his conviction on the count of murder, leave having been granted on petition to this court.

2. At the trial the appellant, who was legally represented, pleaded not guilty and tendered an explanation of his plea which was to the effect that he had acted in self-defence in inflicting a stab wound to the deceased. In his plea explanation the appellant stated that on the 28^th of February 2009 he was at a tavern in Jeffreys Bay where he and a number of persons were playing pool. An argument ensued between him and the deceased. During the argument the deceased drew a knife and attacked him. As a result of this the appellant sustained cuts to his left eye and to the left of his nose. He felt that his life was threatened and he then drew his own knife and stabbed once at the deceased and struck him on his body. The deceased then ran away. He was pursued by a group of persons including the appellant who ran after the deceased who was fleeing down the road. The deceased entered a yard and the appellant followed after him and when he came to a shack in the yard the appellant kicked open the door and entered the house. According to him as he entered the house he fell heavily and struck his head. He was then pulled out of the house by one of the other persons present and he cannot recall anything further that transpired that night.

3. Formal admissions were made by the appellant in respect of the identity of the deceased as well as the content of the post-mortem report compiled by Dr. Angelov. The post-mortem report records the chief finding as being that the deceased suffered a penetrating stab wound into the left chest cavity between the 3^rd and 4^th ribs, through the upper lobe of the left lung and into the left ventricle of the heart. The cause of death was a stab wound to the heart. The appellant admitted that the stab wound suffered by the deceased was administered by him and that he had thereby caused the death of the deceased. The appellant also admitted the contents of a photograph album depicting the scene of where the deceased’s body was found in the shack. These photographs show the deceased lying on his back up against a small couch. They also show the wound to the deceased’s chest and a footprint near the handle on the outside of the door to the shack.

4. The prosecution presented the evidence of three witnesses relevant to the charge of murder. On appeal it was argued that the magistrate had erred in failing to exercise caution in relation to the evidence of a single witness in relation to the charge of murder and that he failed to have proper regard to the contradictions in the evidence presented by the various State witnesses. It was also submitted that the magistrate had in effect ignored or minimised evidence which pointed to the possibility of the appellant’s version being reasonably possibly true. In evaluating the merits of these submissions it is necessary to consider the evidence as a whole and in particular the findings made by the magistrate in respect of the facts as well as the credibility of the witnesses who testified.

5. The evidence of the primary witness, one Ngcoza, was that on the night of the incident he was at Mike’s Tavern in Jeffreys Bay. He was sitting outside the tavern. Some time after 8 pm that night he saw the appellant and one Thabile, both of whom were known to him, come out of the tavern. They were chasing after another young man. This young man was not the deceased. The appellant was carrying a knife. He, Ngcoza, immediately tried to intervene and stop the appellant. He then followed the appellant and Thabile who were chasing after the young man and a short distance down the road he saw the appellant enter a yard. When he got to the yard he saw the appellant kick at the door of a shack. He again called out to the appellant and tried to get him to stop what he was doing. When he went to the door of the shack he saw that there was a light on inside and the deceased was standing alongside a small couch. He then saw the appellant stab the deceased. He then left to go and obtain assistance in order to try to stop the appellant. When he again saw the appellant he was still in the company of Thabile near the tavern and at that point Ngcoza took the knife away from Thabile. Later that evening Ngcoza was among those who were arrested having been pointed out as being part of a group of persons involved. He explained to the police what had happened and when he appeared in court on the Monday following his arrest he was released, no charges being preferred against him. Ngcoza was unequivocal in his evidence that the deceased was not the person whom the appellant and Thabile had chased from outside of the tavern. He was also adamant that the appellant had entered the shack and that he stabbed the deceased in the shack. On that evening he had only entered the tavern at an earlier stage to buy a beer and he was not inside the tavern when the alleged fight had broken out between the appellant and the deceased as alleged by the appellant.

6. The evidence of Nosisi Mayinje, the deceased’s niece, was that on the night in question she and her sister had been studying and watching television. They live, together with her grandmother, in the main house on the property and her deceased uncle lives in a backyard shack on the property. She heard people shouting outside and when she went to the window she saw three persons in the yard. One of those was the appellant. She saw the appellant kick at the door of the deceased’s shack and him enter the shack. After a short while he came out and the three persons then left the yard. After they had left she went out to the deceased’s shack and there found him lying against a small couch.

7. Thabile Rawe’s evidence was that on the night in question he was in the company of the appellant at the tavern where they were playing pool. An altercation ensued between the appellant and some other persons who were present. That group of persons then ran out of the tavern and the appellant and Rawe set off after them. The appellant chased after this group of persons and he entered a yard a short distance down the road. According to Rawe he shouted at the appellant telling him that the persons he was chasing had not entered that yard. Despite this the appellant approached a shack in the yard, kicked open the door and entered the shack. When the appellant came out of the shack Rawe noticed that he had a knife which he then took from him and the two of them then went to another yard to look for the persons they were chasing and eventually returned to the tavern. According to him the deceased was not known to him and the deceased was not one of the persons who was at the tavern. He also stated that he did not pick the appellant up and help him out of the shack as alleged by appellant.

8. In argument before us it was suggested that the magistrate had simply accepted the evidence of Ngcoza and rejected that of Nosisi where her evidence contradicted Ngcoza’s evidence. That submission is not substantiated by a proper reading of the judgment of the magistrate. In respect of both Ngcoza and Nosisi the magistrate made clear credibility findings. He accepted both witnesses as being credible and that they were truthful in their account of what had occurred. He was alert to the existence of discrepancies between these witnesses but considered, in my view quite correctly, that the discrepancies were of a minor and immaterial nature. The principal discrepancy was whether Ngcoza had, as he had testified, left the yard after the appellant had stabbed the deceased or whether he had left before them. Nothing, in my view, turns on that discrepancy. The central issue which confronted the magistrate was whether the deceased was stabbed when he was in the shack or whether the mortal wound was inflicted on him during the course of the alleged fight that had taken place in the tavern. In determining that issue the magistrate was careful to consider the evidence as a whole and in particular assess the reliability of evidence tendered by the witnesses on particular aspects having regard to his assessment of their overall credibility.

9. A court on appeal will not readily interfere with the trial court’s findings in respect of a credibility of witnesses and the facts as found by the trial court must be presumed to be correct unless it is shown that there is a material misdirection in relation to such facts. In my view there is, having regard to the record of the evidence presented before the trial court, no basis to criticise nor differ with the credibility findings made by the magistrate. There is also no misdirection as to the facts, most of which were common cause. The witness Ngcoza was unequivocal that the deceased was not the person who was pursued by the accused when running away from the tavern. He was unmoved in cross-examination on this aspect and was unmoved in relation to what he saw transpire inside the shack, namely that the appellant delivered one stab wound to the deceased who was at the time standing alongside a small couch. Although the magistrate did not find Rawe’s evidence to be entirely satisfactory, he accepted his evidence that he had not picked up the deceased and carried him out of the shack, an aspect which was destructive of the appellant’s version. In contrast to the State witnesses the magistrate found that the appellant was not a credible witness and he rejected as false his evidence in respect of what occurred in the shack. In doing so, in my view, the magistrate neither misdirected himself nor erred in any manner.

10. The evidence established that the appellant became involved in a fight inside a tavern and that armed with a knife, he pursued the person who had allegedly assaulted him. Despite attempts by others to stop him he entered a yard and came to a shack in which he thought the person he was pursuing might be. He kicked in the door, entered the shack and inflicted a mortal stab wound on the deceased. The appellant’s version, namely that he stabbed the deceased at the tavern and in self defence and that despite chasing after the deceased and kicking in the door of the shack the appellant there did nothing further to the deceased was, quite correctly, found not to be reasonably possibly true. That version also does not accord with the probabilities based on the facts as found by the magistrate.

11. A final aspect concerns the medical evidence. The doctor who had undertaken the post-mortem was not called to testify. It appears from the record that the doctor was, at the time of the trial, himself gravely ill in hospital. As a result the magistrate called Dr. Adewinka who was requested to consider the post-mortem findings. The magistrate called this evidence in order to establish whether a person who had suffered a wound such as that inflicted on the deceased would be capable of running a distance of approximately 200 metres after such wound was inflicted. This was to clarify the question as to whether on the probabilities the wound inflicted on the deceased was inflicted inside the tavern or at the shack. The evidence of Dr. Adewinka was that it was possible that a person could run a distance of 200 metres after having suffered a wound such as that inflicted on the deceased. In evaluating this evidence the magistrate considered that it, in the light of the evidence considered as a whole, was mutual and that it did not sway the probabilities one way or the other. In my view he was quite correct in so finding.

12. In the circumstances and for the reasons set out herein the appellant’s appeal must fail. In the result I would make the following order:

The appeal is dismissed.

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GG GOOSEN

JUDGE OF THE HIGH COURT

SANDI, J:

I concur.

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B SANDI

JUDGE OF THE HIGH COURT

APPEARANCES:

FOR THE APPELLANT: Mr CA Renaud, instructed by

Justice Centre, Grahamstown

FOR THE RESPONDENT: Mr D Els, instructed by

National Prosecuting Authority,

Grahamstown

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