South Africa: Eastern Cape High Court, Grahamstown

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[2014] ZAECGHC 113
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Voyi and Another v S (CA&R 78/2014) [2014] ZAECGHC 113 (6 November 2014)
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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION – GRAHAMSTOWN
Case No: CA&R 78/2014
Not Reportable
In the matter between:
LISOLOMZI VOYI …..............................................................................................First Appellant
THANDOXOLO VOYI …...................................................................................Second Appellant
and
THE STATE................................................................................................................. Respondent
JUDGMENT
REVELAS J
[1] The two appellants were arraigned on a charge of murder in the Regional Court, Port Elizabeth. Despite their plea of not guilty, they were convicted as charged on 27 August 2013 and sentenced to ten years’ imprisonment. With leave of this court, the appellants appeal against their conviction.
[2] The deceased in this matter was L[…] M[…]. It is common cause that he died on 7 April 2002 as a result of a “brain haemorrhage due to the effects of a blunt force or forces, inflicted on the body and the consequences thereof” as per the report of Dr William Andrew van der Merwe who performed the post mortem examination of the deceased. It was alleged by the State that the aforesaid were injuries sustained by the deceased during an assault on him perpetrated by the appellants on the evening of Saturday, 6 April 2002.
[3] The post mortem report was admitted by the appellants in terms of section 220 of the Criminal Procedure Act, 51 of 1977 as amended, (“the Act”) and it was also admitted that the deceased sustained no further injuries from the time of his removal from the scene (his house) until the post mortem was performed.
[4] Also not in dispute was the fact that the two appellants were tenants of the deceased who lived in a four bedroom house and that his two young daughters, A[…] and L[...] M[…] had been staying with him since January 2002. The deceased and his wife were estranged when he died.
[5] The trial in the Regional Court only commenced on 16 August 2013, eleven years after the death of the deceased. The only two witnesses called to testify on behalf of the State were the deceased’s two daughters who were eight and five years old respectively when they allegedly witnessed the assault on their father which resulted in his death. They were respectively seventeen and fifteen years old when they testified.
[6] The evidence of the two witnesses was briefly that on the night in question, they were in their rooms sleeping, when an altercation broke out between their father and the two appellants about the whereabouts of a tape. This argument allegedly developed into a brutal assault on the deceased, after which the deceased was put to bed that same night and taken away by ambulance the following morning. He died at the hospital.
[7] The basis of the appellants’ defence was an alibi. They said that on April 2002 they were visiting their aunt in Motherwell from about 18h00 and only returned to the house at 01h00 on 7 April 2002. They stated that they saw nothing out of the ordinary when they arrived and went to sleep. The next morning they found the deceased on the floor in the house and they phoned the ambulance. They argued that the complainants mistook them for two different men. They also denied that they were respectively known as Mabee (the first appellant) and Xolani (the second appellant). The deceased’s daughters were adamant that these were the names of the appellants. The deceased’s former wife B[…] S[…], also testified that the appellants were known to her as Mabee and Xolani. The appellants did not deny any aspect of the assault described by the deceased’s daughters.
A[...]’s Evidence
[8] A[…] testified that she woke up on which I assume must have been the evening of 6 April 2002, and heard that there was an altercation between the deceased and the two appellants. They wanted to know from the deceased where a certain tape was. The appellants accused the deceased of theft of the tape. The first appellant, to whom she referred to as Mabee, slapped the deceased through the face, when the deceased denied any knowledge of the tape he was slapped through the face a second time by the second appellant.
[9] The deceased then fled the house to seek refuge at a neighbouring house, the house of one L[…]. There he was turned away by L[…]’s mother. He then ran to the home of K[…] where he was also turned away and the two appellants caught up with him. They then dragged him back to his house while assaulting him. Opposite the deceased’s house was a church. Here the deceased’s head was knocked (“stamped”) against the cement wall next to the church by the first appellant. He was also forced by the second appellant to drink dirty water from a container that stood outside the church. The appellants also kicked him and beat him with a pipe. A[…] said one of the appellants had a knife but she did not see him use it. Several onlookers from the community emerged. A neighbour called K[…], and certain other adult members of the community were also watching the events. After the appellants managed to drag the deceased back to the house, the assault was continued inside the house while the deceased was on the ground.
[10] According to A[…], she and her sister L[…] were together the entire time and followed the appellants and the deceased at a distance. After the assault, she and her sister left with K[…] to phone the police. On their return to the house the appellants had disappeared. After a while, a woman called M[…] A[…], a friend of the deceased, also came to the house. A[…] covered the deceased with a duvet after helping him onto his bed.
[11] A[...]’s mother also arrived at the deceased’s home and took Asisipho and Lusanda to her home to sleep there for the night. The next morning, when the ambulance arrived the deceased was still conscious on his bed covered with a duvet. He died later at the hospital.
[12] In A[…]’s statement made to the police, she referred to a third person, a friend of Xolani (the second appellant), who was also present during the initial assault. She also said that this person (and not Xolani, as she testified in court) forced her father to drink the dirty water out of the container which stood outside the church. When this contradiction in her evidence was raised with her, she gave the vague explanation that there may have been such a person but he did not assault the deceased.
[13] L[…] had told the police (according to the statement taken from her) that the deceased was carried home from the church in a folded up mattress by the two appellants. When asked to comment on this aspect, A[…] insisted that this never happened and that the deceased was dragged back to the house by the appellants, the first appellant holding him by his hands and the other holding him by his feet. A[…] attributed the discrepancy between her testimony and that of her sister in this regard to a mistake made as a result of her sister being five years old when she observed the incident.
L[…]’s Evidence:
[14] L[…] corroborated her sister A[…]’s testimony in the following respects:
(a) There was an altercation between their father and the appellants, whom she knew as Mabee (the first appellant) and Xolani (the second appellant).
(b) She and A[…] were together at all relevant times prior to and during the assault on the deceased and they followed the appellants as they chased their father.
(c) The deceased first ran to L[…]’s home where he was turned away.
(d) The appellants dragged the deceased back to the house where the assault on him continued. On the way he was forced to drink dirty water.
(e) She and A[…] went to sleep and M[…] A[…]’s house that evening.
(f) The deceased was still alive when the ambulance fetched him.
[15] As for the remainder of L[…]’s testimony, there were material contradictions between the versions of the two sisters, as demonstrated in the following evidence given by L[…]:
[16] L[…] testified that before the deceased escaped from the house he was first assaulted in the kitchen and the appellants also hit his head against the walls inside the house. A knife was taken from a kitchen drawer and the deceased was stabbed in the leg. A[…] only witnessed two slaps through the face of the deceased before he fled the house.
[17] According to L[…], somewhere between the church and the house (after the deceased was apprehended by the appellants and had been dragged back to the house), the deceased was folded up in a mattress and carried to the house. Just before they reached the house, she said, the deceased was undressed by his assailants, the mattress was raised and the deceased was tossed into the air. When he fell down on the ground, the appellants took his head and they knocked it on the tar road. A[…] did not witness anything remotely similar to this account.
[18] According to L[…], the appellants were the ones to lay the deceased down on a mattress and who covered him with a blanket, and not A[…]. L[…] confirmed A[…]’s evidence that she and her sister went to sleep at M[…] A[…]’s house in her testimony in court, but in her statement to the police she said that she slept with the deceased that night.
[19] L[…]’s testimony did not shed any light on A[…]’s self-contradictory evidence about an alleged third perpetrator.
Analysis
[20] When the identification of an alleged offender is in issue in a criminal trial, everything turns on the honesty of the identificatory witnesses and the reliability of their observations. (S v Mthetwa 1972 (3) SA 766 (A) at 768 A-C).
[21] The State, relying on the judgment in Mthetwa at 768 A-C, emphasized that the deceased, the appellants and the eye-witnesses were all known to each other. The regional magistrate adopted the same approach in his judgment and took into account that the two girls had prior knowledge of the appellants and had ample opportunity to observe and identify the perpetrators of the assault on their father over a period of time. The temptation to accept their evidence is obvious.
[22] The magistrate, in his judgment also recognised that there were discrepancies and contradictions in the versions of the two eye-witnesses, but attributed them to human error. In accepting their evidence as reliable, the magistrate deferred to the judgments in S v Oosthuizen 1982 (3) SA 571 (T) at 576 B-C and G-H, and S v Mkohle 1990 (1) SACR 95 (A) f-g, where it was stressed that contractions per se should not lead to the rejection of a witnesses’ evidence, as they may be indicative of an error. It was held in Mkohle at 98 f-h, that in each case an evaluation must be made, “taking into account such matters as the nature of the contradictions, their number and importance, and their bearing on other parts of the witness’ evidence”, and also a consideration of whether the contradictions were relatively minor in nature and “the sort of thing to be expected from honest but imperfect recollection, observation and reconstruction”.
[23] The contradictions in this case were neither few nor minor in nature and also exceeded mere imperfect recollection. The several substantial contradictions shown are very significant, particularly since the two sisters, on both their versions, were together the entire time. In addition, the events of the night in question were observed by several adults who could have provided the corroboration for the testimonies of the two eye witnesses, which the circumstances of this case demanded. Why none of these persons were called to testify was not explained. The inordinate delay of eleven years in bringing the matter to trial, also remained unexplained and is another material factor which diminished the evidentiary value of the evidence presented by the State. In the light of the aforesaid combined with the youthfulness of the two eye-witnesses, the evidence should have been approached with greater caution by the magistrate, in my view.
[24] When all these factors are weighed up against one another, the reliability of the evidence of the two main State witnesses do not pass muster. Scrutinized closely, their evidence was not sufficiently reliable to sustain a conviction of murder. It follows that the State did not discharge the onus of proving the guilt of the appellants based on reliable evidence, beyond reasonable doubt.
[25] In conclusion, the appeal is allowed and the convictions of the appellants and sentences imposed on them are hereby set aside.
__________________
E REVELAS
Judge of the High Court
Eksteen J: I agree.
____________________
JW EKSTEEN
Judge of the High Court
Counsel for the appellant, Adv Engelbrecht, instructed by Nolte Smit Inc.
Counsel for the State, Adv Mgenge, instructed by Director of Public Prosecutions.
Date Heard: 29 October 2014
Date Delivered: 6 November 2014