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Zama v S (CA 256/2012) [2014] ZAECGHC 23 (27 March 2014)

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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – GRAHAMSTOWN

CASE NO: CA 256/2012

DATE HEARD: 10/3/14

DATE DELIVERED: 27/3/14

NOT REPORTABLE



In the matter between:


TAMSANQA ZAMA..............................................................................................................APPELLANT


and


THE STATE..........................................................................................................................RESPONDENT


Appeal against convictions of kidnapping and murder – evidence of accomplice – cautionary rule satisfied – appeal against factual findings of trial court – no misdirection on part of trial judge – appeal dismissed.



JUDGMENT

PLASKET J

[1] The appellant was one of four accused who were tried before Van der Byl AJ and convicted by him of having kidnapped and then murdered, in the most barbarous manner, one Mthuthuzeli Runqu (the deceased). The appellant was sentenced to 15 years imprisonment, both counts having been taken together for purposes of sentence. The appeal – against conviction only – is before this court with the leave of the Supreme Court of Appeal, Van der Byl AJ having refused leave.

[2] It would appear that the deceased had cheated accused 1 in relation to the sale of a cell phone and had also stolen the wallet of one Nkosinkona Zozo, an accomplice who gave evidence for the State.

[3] On 22 October 2007, accused 1 had seen the deceased inside a supermarket. He waited for him to leave. The deceased must have been aware of this because he remained inside the supermarket. At some point Zozo arrived. He and accused 1 were later joined by accused 4. They guarded different entrances to the supermarket. Accused 1 was alerted to the fact that the deceased was about to leave through an entrance at the back of the supermarket. When he did so, accused 1, 4 and Zozo were waiting and gave chase. Accused 1 caught him and began to assault him. The others joined in.

[4] Accused 1 hired a car to take the three of them and the deceased, who was put in the boot, to a certain store, KwaHlathi Store. There accused 1 assaulted him further before giving him alcohol to drink. In order to take the deceased to ‘the veld’ the appellant was approached by accused 1 for the use of his car. As it was not in working order, arrangements were made to use accused 3’s car.

[5] In due course, the deceased, Zozo the appellant and accused 1, 3 and 4 left in accused 3’s car. They drove to a piece of open veld where the deceased was assaulted with sticks and a metal jack lever, was tied to the car and dragged behind it before he was dragged into the bush and covered with rocks and stones, and left there to die.

[6] He was discovered soon thereafter, while he was still alive, but he died later in the Dora Nginza Hospital.

[7] The most important witness for the State was undoubtedly Zozo, although others gave evidence about some of the events of that day. Only one of the accused, accused 1, testified.

[8] In this appeal, the core issue to be decided is whether Van der Byl AJ erred in accepting the evidence of Zozo, the only witness who implicated the appellant directly. It was also argued on the appellant’s behalf that even if Zozo’s evidence is accepted there is no evidence that the appellant was aware that the deceased was being kidnapped or that he formed a common purpose with Zozo and the others to kidnap and murder the deceased.

[9] The appeal is essentially against Van der Byl AJ’s factual findings. It also concerns his approach to the acceptance of the evidence of Zozo, an accomplice.

[10] The approach to how appeal courts ought to deal with appeals based on fact is well known. In R v Dhlumayo and another[1] Davis AJA stated:

8. Where there has been no misdirection on fact by the trial Judge, the presumption is that his conclusion is correct; the appellate court will only reverse it where it is convinced that it is wrong.

9. In such a case, if the appellate court is merely left in doubt as to the correctness of the conclusion, then it will uphold it.

10. There may be a misdirection on fact by the trial Judge where the reasons are either on their face unsatisfactory or where the record shows them to be such; there may be such a misdirection also where, though the reasons as far as they go are satisfactory, he is shown to have overlooked other facts or probabilities.

11. The appellate court is then at large to disregard his findings on fact, even though based on credibility, in whole or in part according to the nature of the misdirection and the circumstances of the particular case, and so come to its own conclusion on the matter.

12. An appellate court should not seek anxiously to discover reasons adverse to the conclusions of the trial Judge. No judgment can ever be perfect and all-embracing, and it does not necessarily follow that, because something has not been mentioned, therefore it has not been considered.’


[11] In S v Francis[2] Smalberger JA re-iterated the position set out in Dhlumayo, stating that in the ‘absence of any misdirection the trial Court’s conclusion’, including its acceptance of the evidence of an accomplice, ‘is presumed to be correct’.

[12] In this case, Zozo was both an accomplice and a single witness in certain respects. That meant that the trial court was required to exercise caution in its evaluation of his evidence. It had, in other words, to ‘consciously remind itself to be careful in considering evidence which practice has taught should be viewed with suspicion’ and to ‘seek some or other safeguard reducing the risk of a wrong finding based on the suspect evidence’.[3]

[13] The type of safeguard referred to is often evidence that corroborates the evidence of the accomplice but corroboration is not the only way that the cautionary rule may be satisfied: anything that reduces the risk of a wrong conviction will suffice – such as the accused showing himself or herself to be a lying witness or failing to give evidence to gainsay the evidence of the accomplice.[4] In S v Francis[5] Smalberger JA held that an accomplice, in order for his or her evidence to be accepted, need not be ‘wholly consistent and wholly reliable, or even wholly truthful, in all that he says’ but the ‘ultimate test is whether, after due consideration of the accomplice’s evidence with the caution which the law enjoins, the Court is satisfied beyond all reasonable doubt that in its essential features the story that he tells is a true one’. And, in R v Kristusamy[6] Davis AJA, after articulating the same test, expressed the view that if ‘more than that were required, the administration of justice would in many cases be rendered impossible’.

[14] I turn now to the judgment of Van der Byl AJ.

[15] He was, not surprisingly, alive to the fact that he had to exercise caution in the evaluation of Zozo’s evidence and why this was so. He recorded that counsel had criticised Zozo’s evidence because of discrepancies between his evidence and a statement he made to the police, as well as between his evidence and the evidence of other witnesses. He proceeded to deal with these issues as well as a further contradiction that he had identified.

[16] Having analysed the discrepancies and contradictions, Van der Byl AJ concluded that the differences between Zozo’s evidence and his statement were not material ‘to such an extent that I should hold that he was an untruthful witness’ and that, having given ‘anxious consideration’ to the cumulative effect of the criticisms of Zozo’s evidence, he was not persuaded that it had been shown that his evidence was ‘substantially flawed or that he has been a deliberately untruthful witness’.

[17] Van der Byl AJ then stated that there were, in fact, many important features of his evidence that were corroborated by other witnesses and also, to an extent, by a statement made by accused 1. After dealing with the evidence of these witnesses and accused 1’s statement, he concluded that he was ‘satisfied  that despite some not so significant shortcomings in his evidence, he told me the truth’.

[18] Van der Byl AJ identified three factors that reduced the danger of Zozo implicating the accused falsely. They were that he and at least two of the accused were on good terms; there was no gainsaying evidence given by the appellant, accused 3 and 4; and accused 1’s evidence was false. In addition, I may add, there are more factors that were not mentioned. There was nothing to suggest bad blood between Zozo and the appellant. It was clear from Zozo’s evidence that he played a central role in the commission of the offences. He did not shy away from this or try to downplay his involvement. On the other hand, he was at pains to say that although all of them had taken part in the kidnapping, accused 4 had not participated in the assault. These additional factors are indications of truthfulness and go towards the satisfaction of the cautionary rule.

[19] It seldom happens in a criminal case that all of the evidence falls neatly into place. So too in this case. Evidence was led by the State of a dying declaration made by the deceased in which he implicated one Mawethu Noselela in the fatal assault on him. As Van der Byl AJ noted, however, this evidence flew in the face of all the other evidence led by the State. He concluded, for a number of reasons set out in the judgment, that Noselela could not possibly have taken part in the assault.

[20] In his judgment, Van der Byl AJ analysed the evidence with care. He approached the evidence of Zozo with the caution that the law requires. He found that Zozo was a truthful witness and that the deceased, when he made the dying declaration, must have been mistaken. I am unable to discern any misdirection in the way that Van der Byl AJ made factual findings or in the factual findings themselves. I am unconvinced that grounds have been established to show that Van der Byl AJ was wrong in the acceptance of the evidence of Zozo.

[21] Did Zozo’s evidence establish beyond reasonable doubt that the appellant was guilty of kidnapping and of murder? His evidence was that the appellant was not involved initially in the kidnapping of the deceased when he was forced into the boot of a car and taken to KwaHlathi Store. He had then been contacted by accused 1 to provide transport to take the deceased to the veld. He was present with Zozo and the other accused when Zozo, accused 1 and accused 4 forced the deceased into accused 3’s car and made him sit between Zozo and accused 1. He stated that accused 1 had told the appellant and accused 3 precisely why the deceased was being taken to the veld by them – in order to be assaulted. When they arrived at the place in the veld, the appellant took a stick from accused 1 and joined in the assault on the deceased that had been initiated by accused 1 and Zozo. After accused 3 had tied the deceased behind his car, it was the appellant who drove the car and dragged the deceased behind it. Finally, the appellant was party to dragging the deceased into the bushes and covering his body with rocks and stones.

[22] Van der Byl AJ found that the appellant had been party to the kidnapping of the deceased when he had been forcefully removed from KwaHlathi Store, placed in accused 3’s car and taken to the place where he was assaulted. In my view, he was correct in making this finding: when the evidence that I set out in paragraph 21, the reason for the appellant being drawn into the picture and his enthusiastic participation in the assault on the deceased are all taken together, the conclusion is inescapable that the appellant was aware of the fact that the deceased had been and continued to be deprived of his liberty when forced into the car and thereafter, and formed a common purpose with Zozo and his co-accused to take him, against his will, to the veld where he was to be assaulted.

[23] Van der Byl AJ also found, on the basis of the evidence as a whole, that it was obvious that Zozo and all of the accused had acted with a common purpose ‘in performing all the actions which eventually led to the injuries [the deceased] sustained and eventually to his death’.

[24] On the facts found to have been proved, all of the requirements for a conviction based on the doctrine of common purpose, as set out in S v Mgedezi & others,[7] were established in relation to the appellant in respect of both the kidnapping and murder charges.

[25] The appellant did not testify. That was his right but certain consequences flowed from that decision. In S v Boesak[8] Langa DP said the following of an accused person’s right to silence and its exercise in a criminal trial:

The fact that an accused person is under no obligation to testify does not mean that there are no consequences attaching to a decision to remain silent during the trial. If there is evidence calling for an answer, and an accused person chooses to remain silent in the face of such evidence, a court may well be entitled to conclude that the evidence is sufficient in the absence of an explanation to prove the guilt of the accused. Whether such a conclusion is justified will depend on the weight of the evidence.’

[26] Clearly, once the direct and detailed evidence of Zozo, supported as it was by other acceptable evidence, was accepted as truthful, it required an answer from the appellant if he hoped to be acquitted. Once gainsaying evidence was not forthcoming from the appellant, the State had proved its case against him beyond a reasonable doubt, as Van der Byl AJ found.

[27] To sum up: Van der Byl AJ approached the evidence of Zozo with the caution that the law requires when the evidence of an accomplice is being evaluated; and his factual findings are not tainted by misdirection, are therefore presumed to be correct and may not be interfered with on appeal unless they are clearly wrong – which has not been established in this case. The result is that the appeal cannot succeed.

[28] The appeal is dismissed.


C Plasket

Judge of the High Court

I agree.


E Revelas

Judge of the High Court


I agree.


B Hartle

Judge of the High Court

APPEARANCES

Appellant: J Van der Spuy of the Port Elizabeth Justice Centre

Respondent: M Mnyani of the office of the Director of Public Prosecutions, Port Elizabeth  



[1] R v Dhlumayo & another 1948 (2) SA 677 (A) at 706.

[2] S v Francis 1991 (1) SACR 198 (A) at 204c-e.

[3] P J Schwikkard and S E van der Merwe Principles of Evidence ( 3 ed) at 546. See too S v Hlapezula & others 1965 (4) SA 439 (A) at 440D-G.

[4] R v Ncanana 1948 (4) SA 399 (A) at 405-406.

[5] Note 2 at 205e-g.

[6] R v Kristusamy 1945 AD 549 at 556.

[7] S v Mgedezi & others 1989 (1) SA 687 (A) at 705I-706C.

[8] S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC) para 24.