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[2014] ZAECGHC 89
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Tyoti v S (CA&R 274/12) [2014] ZAECGHC 89 (23 June 2014)
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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GRAHAMSTOWN
CASE NO: CA&R 274/12
DATE: 23 JUNE 2014
NOT REPORTABLE
In the matter between
WRIGHT TYOTI.........................................Appellant
Versus
THE STATE.................................................Respondent
APPEAL JUDGMENT
HARTLE J
1. The appellant appeals against his conviction of murder in the regional court, Port Elizabeth, on 6 December 2011, pursuant to which he was sentenced to the prescribed minimum sentence of fifteen years’ imprisonment after the court failed to find that there were any substantial and compelling circumstances to deviate therefrom. At the same time he was convicted of two counts of assault common and three counts of assault with intent to do grievous bodily harm. In respect of the assault common convictions he was sentenced to undergo imprisonment of six months on each count and, in respect of the more serious category of assault with intent to do grievous bodily harm, to two years’ imprisonment on each count. The sentences on counts 2, 3, 4 and 5 were ordered to be served concurrently with the murder sentence. He was therefore sentenced to an effective term of seventeen years’ imprisonment.
2. Application for leave to appeal was made to the trial court, ostensibly only in respect of the murder conviction and the sentence imposed in that regard, which was refused. On petition to this court leave to appeal against “both conviction and sentence” was granted. The latter order is confusing since the appellant pursued the petition in person and included amongst the grounds for leave that the trial court ought to have acquitted him on these charges in view of the fact that the complainants in those matters had sought to withdraw the charges whilst the trial was underway. However, we were assured by Mr Geldenhuys, who appeared for the appellant, that he would not pursue his complaint that there was any basis to upset these convictions on appeal. This notwithstanding, he was inclined of the view that the convictions of assault with intent to do grievous bodily harm in respect of counts 2 and 3 should be set aside and substituted with convictions of assault common. This is unnecessary, however, as it is apparent from the trial court’s judgment on the merits - even if the face of the J15 might suggest otherwise, that the appellant’s convictions in respect of these two counts were limited to assault common, which is also reflected in the lesser sentences which the trial court imposed in respect of these two counts.
3. I therefore return my focus to the murder conviction.
4. It is common cause that on 18 December 2010 the deceased broke into the shed in the appellant’s yard in the early hours of the morning and that he was assaulted there by the appellant. He succumbed shortly thereafter from certain injuries sustained as a result of the assault. In dispute was whether the injuries which caused his death were inflicted by the appellant, or others. His defence, which emerged during cross examination and which was amplified when he testified, was that he only struck the deceased twice, once on his hand and then on his arm with a pick handle in the course of defending himself. Thereafter members of the community wishing to vindicate a robbery the deceased had committed the previous night entered his yard, and severely attacked him with iron rods resembling sticks. They - not he, so he claimed, inflicted the fatal injuries.
5. He formally admitted that the deceased died from head and abdominal injuries occasioned by blunt force to the head and abdomen. Also formally admitted as correct were the contents of the post mortem examination report and the photograph album prepared by the police and entered into evidence. I mention two aspects arising therefrom which are relevant for present purposes. The first is the external appearance of the body and condition of the limbs noted by the examining forensic pathologist. According to him the injuries were largely occasioned to the upper body of the deceased, more especially his head. The deceased also sustained a fractured right humerus. The broken arm is particularly evident in several photographs in the album, the arm jutting out at an obviously unusual angle. According to the key to the album the photographs in which this particular injury is depicted are intended to represent the deceased “with injuries as found on the scene of (the) crime”.
6. The appellant’s version maintained during the trial was to an extent supported by his girlfriend, Ms Buyiswa Dambuza, who was called as a state witness evidently because she was the complainant in two of the assault charges preferred against him, which incidents were alleged to have been perpetrated earlier than the murder offence, on 4 and 8 July 2010 respectively.
7. The state called three other witnesses, Sipho Tyse, Nkosinathi Gotyana and Nonzamo Gotyana who pertinently testified that it was the appellant, and not members of the community, who carried out a sustained and vicious assault upon the deceased inside his yard which led to his death. The magistrate regarded Ms Dambuza’s evidence as being biased and preferred that of the three witnesses aforesaid even though there were concerns with the state’s case which he was especially astute to highlight in the judgment and to justify against the totality of the evidence. Contrariwise he found that the appellant’s version was so riddled with contradictions, inconsistencies and improbabilities justifying the rejection of his version as not being reasonably possibly true.
8. The question which arises for decision in this appeal is whether the magistrate erred in his assessment of the evidence and more particularly whether he misdirected himself on the facts.
9. Mr Geldenhuys submitted that the court’s rejection of the appellant’s evidence was unjustified, given the corroboration thereof by Ms Dambuza. It was also consistent with the evidence of Daniel Jonker, a police officer who arrived at the crime scene shortly after the deceased was assaulted. He pointed to several contradictions in the evidence of the three witnesses who claimed that the appellant was responsible for the death of the deceased contending that these were material and justified the rejection of the version that the appellant had caused the death of the deceased. Mr Els who appeared for the state conversely supported the conviction.
10. It is necessary to furnish a detailed account of the evidence of each of the witnesses who testified at the trial regarding the murder charge.
11. Mr Sipho Tyse is a resident of Walmer Township in Port Elizabeth. He testified that on the morning in question he was returning from a nearby shop where he had gone to buy airtime. It was approximately 6am. He saw a large group of people standing outside the appellant’s yard observing something taking place on the inside. He noticed the appellant assaulting the deceased with a “pick handle” over his entire body and on his head. At one stage the appellant had the deceased’s head on an empty beer crate and was hitting him about the head with the handle. The appellant was alone with the deceased inside his yard at the time. As he saw it, none of the observers could intervene because the gate was locked with a padlock. The yard is also surrounded by a high fence. He himself tried “by all means” to gain entry because he could see the deceased was “dying”, but the community members stopped him saying that it will be “another problem” if he goes in. As a result he left the scene. At that point the appellant was still assaulting the deceased. Later he heard that the deceased had died at the scene.
12. He denied under cross examination the proposition put to him that all his evidence given was a lie, or that “bad blood” existed between him and the appellant because he had supposedly proposed to his girlfriend and was jealous of the appellant. He bore no knowledge of the reason for the assault on the deceased. He was on the scene for only about fifteen minutes and left before the police arrived. When the appellant’s version was put to him that the deceased had confronted him with a knife, he readily agreed that he had seen a knife lying near the deceased’s body, although he claimed not to have seen the deceased stab the appellant with it. (The knife on the crime scene is also evident from the photo album.) He denied that the community members standing on the outside of the yard were armed with sticks or other weapons. An important contradiction referred to in his police statement was highlighted during cross examination. This concerned the fact that he had declared in the written statement that he had seen the appellant stab the deceased with a knife. He suggested that perhaps he had forgotten about it and thereupon proceeded to confirm in his oral testimony that he had indeed observed the appellant stabbing the deceased with a knife.
13. When probed as to how and when this had happened he agreed that the appellant must have put the pick handle down and taken up the knife to stab the deceased. He related that the appellant stabbed the deceased several times, and then tentatively limited it to twice “when (he) was there”. However, he could not explain why, despite presently justifying that he had seen the appellant stab the deceased (even to the point of demonstrating how in court), the post mortem examination report made no reference to any stab wounds.
14. Nkosinathi Gotyana, a police reservist, was brought to court on a warrant of arrest after he ignored a subpoena to testify against the appellant, apparently out of fear for the latter. He testified that he was woken up by Ms Dambuza between 06h30 and 07h00 on the morning in question and asked to intervene as her boyfriend was busy “murdering” someone. After dressing he directly proceeded to her house. There he found the deceased lying on the ground and the appellant assaulting him. The deceased was apologizing. He was using a pick handle and at one point had put the deceased’s arm on a black dairy or vegetable crate and was striking it with the handle. Blows were delivered to his head, chest and neck as well. At that stage he was the only person on the inside of the premises with the appellant, the deceased and Ms Dambuza who was screaming that “someone is laying down”. He tried to intervene, hoping that his familiarity with the appellant would be of influence, but instead the appellant turned on him. Since he was unarmed, he retreated. Eventually he went off the property and stood by with other members of the community who were outside the yard. At some point the appellant left the scene on a bicycle, but was around later when the police arrived around about “09h00” and took over the scene. He later corrected himself by suggesting that it must have been earlier and that he was merely estimating the time. He at least recognized Constable Poho who was present at the crime scene. The police asked generally what had happened, but no one from the community seemed to want to come forward and volunteer any information.
15. He was adamant that although the gate at the appellant’s home was open at the time of his arrival at the appellant’s home, none of the onlookers had entered into the yard. He denied that any community member ever assaulted the deceased, or that they were armed with any sticks or iron rods or golf sticks. According to him they were merely watching what was going on. He himself did not see a knife at the scene.
16. Discrepancies between his police statement and oral testimony were explained away by him as being due to mistakes, latent memory or not recollecting specific aspects at the time his statement was taken down.
17. Nonzamo Gotyana, the aunt of Nkosinathi Gotyana, testified that on the morning in question she heard a woman scream. She proceeded to the appellant’s home when she realized it was Ms Dambuza shouting for help. When she approached the house she saw the appellant lying on the ground inside the yard. The appellant was hitting him with a pick handle using both hands in front of the belly and on his upper body. Bystanders were looking on from outside the yard. Ms Dambuza went to summon her nephew, Nkosinathi Gotyana, who arrived later and tried to intervene by speaking to the appellant, but to no avail. She stood outside the yard with the others who were reluctant to go into the yard. The police arrived at the stage when the deceased was lying down. She noticed that he was bleeding from his mouth and was begging pardon now and then. Under cross examination she clarified that the deceased had been struck a blow to his arm when the appellant positioned it on a crate, to the extent that it was caused to bend and a bone was emerging out of the arm. She also saw that he was hit on the neck.
18. Juxtaposed to the evidence of these three witnesses was that of the appellant’s girlfriend, Ms Dambuza. She confirmed that on 18 December 2010 she was awoken by a noise outside and that she became aware of the deceased trespassing on their premises. When she enquired why he was there, he replied that he was looking for “Chicks” (scrap metal). He appeared disaffected by the fact that she had caught him in the act as it were. She woke the appellant up who came out to deal with him. The deceased was armed with a knife which he used to stab the appellant on the arm. The appellant took a pick handle from the roof of the shed which he used to hit the deceased’s hand with in order to disarm him. The knife fell and the appellant struck him again on the arm. Both she and the appellant tried to pull him into their house so that the police could arrest him there. In the meantime a group of people from down the street emerged and asked what was going on. She explained that the deceased was a thief who they had caught inside their yard. One from the group volunteered that the deceased is the young man they too were looking for as he had been robbing them down the street.
19. Although the gate to their premises was locked, she claimed that the people forced open the padlocked gate and thus entered into the yard. They grabbed the deceased away from the appellant and began assaulting him. The appellant tried to intervene, pleading with them not to assault him as the two of them had already called the police. The group of about six (comprising of people unknown to her and who she never saw again) were armed with iron rods and sticks. She only witnessed a single blow being delivered by one of the group armed with the golf stick. Realizing that the appellant could not succeed in stopping the crowd, she went to call Nkosinathi Gotyana (from eight houses away) to come and assist her. She asked him to help to call one Captain Nyamakazi because she had long been trying to call the police. She deduced that he had made contact because she could hear Nkosinathi saying over the phone that members of the community are taking the law into their own hands. He promised he would send a van and she returned to her home. She was not expecting him to come to the scene but saw him later again down the street when the police were around. According to her testimony the first police van arrived at about 06h10 as she was getting back to her house, but by then the people who had assaulted the deceased had already moved off the premises. There were still bystanders, but their number had dwindled to about seven or eight.
20. Under cross examination she maintained that Mr Tyse had lied in his testimony by stating that the appellant took the pick handle and hit the deceased with it repeatedly. She attributed this to a grudge he held against the appellant who had apparently confronted him about his ongoing proposals of love to her.
21. She was adamant that the appellant’s only contribution to the assault was that he had hit the deceased twice in self defence, once on the hand to disarm him and the second time on the arm. She agreed with the assertion put to her that he had no intention to kill the deceased. She denied that she was protecting the appellant because of their long standing relationship. Despite the fact that she left the scene to get assistance she confidently asserted that she would have seen it if the appellant had assaulted the deceased as claimed by Mr Tyse. Contrariwise she claimed not to have seen the attack by the mob on the deceased because she had gone to Mr Gotyana’s house. By way of clarification she claimed that at the time the mob forced their way onto their premises, they were angry (venting) and were inciting that “this dog (meaning the deceased) must die”.
22. In response to questions from the court, she denied seeing anyone hit the deceased on his head or abdomen. She stayed long enough however to realize that the deceased was “losing it” or “becoming weak” after being struck by one of the group with a golf stick on his back. Whilst she ultimately reconciled herself to the possibility that the appellant could have assaulted the deceased after she left the scene to get help - in other words in her absence, she asserted that it was a remote one because as far as she was concerned at that stage the deceased was already in the “hands of the community”.
23. Also in the category of evidence which Mr Geldenhuys submitted gives support to the appellant’s version, was that of Constable Jonker. He testified that he had just reported for duty on the morning in question when he received a call on the police radio for back up in the Walmer Township. When he arrived on the scene at approximately 06h33, the night shift was already on the job “attending a scene of mob justice”. He noticed a man lying in the yard behind the wall, in front of the door. He was injured very badly. They contacted the ambulance and remained on the scene for about three hours waiting for it to arrive after making several calls. When the Metro ambulance arrived finally the man (the deceased) was pronounced dead.
24. Asked if he had encountered any mob justice taking place he mentioned that he had noticed a crowd of people on the scene moving with “knobkieries” and “sticks or something” who were singing and shouting outside the house. He did not know what it was about, but could see that it was “getting serious” enough to render it necessary to get more backup and “to intervene there”. Hearsay evidence of what he had been told earlier by a Constable Poho was provisionally admitted, but never confirmed by the latter. This was to the effect that the injured person was robbing people that evening and that the community had arrested or caught him. When probed under cross examination as to what he had meant regarding the matter becoming serious, he explained that the community was baying for the deceased’s blood but that he had managed to get them to calm down quite considerably. They wanted to take the deceased away from the scene. He surmised that this could only be to “finish him off”. One of the women present pointed out that he had on her son’s shoes, pants and shirt that he had “robbed” from him the previous evening.
25. According to him the crowd swelled while he was there from +20 to 50 shortly after his arrival on the scene, to up to approximately 300 people. The assault was over by the time he got there and none from their number assaulted the deceased in his presence. On the contrary, nobody even got close to the deceased.
26. The appellant himself testified that at dawn on 18 December 2010 he was awoken by Ms Dambuza and alerted to the presence of an intruder in their shed. He found the deceased scratching about inside the shed with his body half in, half outside of the wooden structure. He tried to enquire from him what he was doing but was ignored. As he got closer Ms Dambuza cautioned him to be careful because she had noticed that the deceased had drawn a knife. In the process of trying to grab hold of the deceased, he stabbed the appellant on his left arm. The deceased continued coming towards him “vigorously” trying to stab him. He took a pick handle from the roof of the shed and hit the deceased with it on the hand holding the knife. As a result the knife fell down. The deceased kept charging at him so he hit him again on the upper part of his left arm. He wrestled with the deceased in order to get him into the house so that when the police arrived, he would be secure inside. He instructed Ms Dambuza to go and call the police. While he was busy pulling the deceased into his house, six or more members of the community came into the premises. (He suspects that they forced entry into the yard because according to him the gate was locked.) They were armed with sticks, “knobkieries” and “pieces of iron” and bore an angry and aggressive demeanour; so much so that even he was afraid he would be attacked by them as well. They started assaulting the deceased, complaining that he had robbed someone the previous night.
27. He tried unsuccessfully to stop them but they would not listen to him and pushed him aside. They kept on hitting him until he was on the ground, crying out while they were so busy “Let the dog die!” They carried on as if they were killing a snake. He stood by helplessly. When they were done they left the deceased lying down and went out by the gate. Others came on to his premises and made utterances like “This dog is not yet dead”. Another woman arrived and pointed to clothes of her child on the deceased’s body. By the time the police arrived (after the sun had already risen) the people were no longer there. As far as he could recall the ambulance arrived before the police did. He pointedly denied assaulting the deceased as certain of the state witnesses had claimed or that he had any intention to kill him. He maintained that the first of the blows he delivered to the deceased was to the hand to deflect the knife and the second and last blow to his arm.
28. Concerning each of the three state witnesses who supported the version that the appellant alone assaulted the deceased, he had a reason why they would falsely implicate him or why their evidence should be rejected. With regard to Mr Tyse, it was because he once “proposed love” to Ms Dambuza. Concerning Nkosinathi Gotyana, he denied that the witness came on to the scene at all or tried to intervene as he said he did. Neither did he see he latter’s aunt, Ms Gotyana, at the scene that day at all. Under cross examination he claimed that since he had become involved with Ms Dambuza the police generally appeared to be harassing him. (This was after the assault charges preferred by her against him.) He attributed jealously to the investigating officer firstly since the latter once proposed to her as well. Another policeman, who he referred to as “Mike”, had also proposed to her. On this basis he claimed that they were not maintaining objectivity in the matter and that they wanted him to stay in prison.
29. He could not explain why he had not raised this conspiracy theory in his evidence in chief even though he conceded being asked by the state if he knew of any other man interested in his girlfriend. Only Mr Tyse has been singled out in this regard. He refuted Ms Dambuza’s testimony that he had confronted Mr Tyse about the proposal, but later suggested that possibly there were some aspects he could not remember.
30. Regarding the nature of the assault upon the deceased by the alleged mob, the detail of this was limited to the assertion that they were assaulting him as if they were killing a snake. Some of the persons in the crowd were armed with iron rods and sticks, (but not “knobkieries” he now corrected himself). He could not account for why he had not seen a golf stick as testified to by Ms Dambuza except to suggest that she may be categorizing the weapon differently to him. He claimed that although he did not know the names of the perpetrators responsible for the deceased’s injuries, he was in a position to identify them but the police were only interested in detaining him. He at first refuted that the deceased was assaulted on his head, but when his attention was drawn to the cause of death stated in the post mortem report being due to inter alia blunt trauma wounds to his head, he suggested with the benefit of this hindsight that his vision of the beating may have been obscured at the time. He could therefore not dispute that the deceased was also assaulted on his head.
31. He added another reason under cross examination why Mr Tyse would lie against him claiming that he was staying in a house which was provided to him by the investigating officer in the matter and that he was therefore beholden to him. It was his belief that if he did not testify against the appellant, Mr Tyse would be evicted from his house. Nonzamo Gotyana too had lied and the reason furnished by him in this regard is that the appellant had once proposed to the witnesses’ girlfriend. He attributed Nonzamo Gotyana’s lies to the fact that she may not have liked the fact that the appellant had proposed to her nephew’s girlfriend.
32. Ultimately the appellant changed his mind about the weapon which he said he had used to assault the deceased, seemingly in an attempt to discount the thought that there must be some credence to the state’s testimony since these witnesses had all co-incidentally testified that the murder weapon used was a pick handle. Apparently even to the surprise of his legal representative - who sought leave to re-examine the appellant in this regard, he claimed that he had not used a pick handle but rather a shorter axe handle.
33. As is evident from the summary above the state’s case was not without its shortcomings but the magistrate - in evaluating the evidence, pertinently dealt with these. Firstly, regarding Mr Tyse, he noted as follows:
“However, (Mr Tyse’s) evidence could not accepted without any criticism. In his evidence, this witness testified that he, in his evidence-in-chief that the accused had a knife which he used to stab the deceased. This evidence, in fact, did not come from the evidence-in-chief, but was elicited during cross examination. This evidence from this witness, is not supported by any other witness, or the medical report or the post mortem report. In fact, contradictions made by a witness, do no lead to the rejection of his evidence. It may simply be indicative of an error.
Not every error made by a witness affects his credibility. In each case, the court has to make an evaluation, taking into account the nature of the contradiction. Their number and their bearing on the other part of the evidence …
This witness as he testified was watching this incident from outside the premises. There were also other bystanders who were watching with him.
From the evidence, it is clear that he is the only person who saw the knife. And there is no evidence that the knife if one looks at the post mortem report, there is no corroboration regarding to that aspect.
Also this fact, the story about the knife, was not, as I said, elicited during evidence-in-chief, but only cropped up during cross examination. The view of the court is that clearly the witness, the evidence of this witness is not reliable, when, regarding this aspect.
However, on the other aspects, relating to the time when, talking about the time, I am not talking about the exact time, but I am talking about the time of the day, the place, the weapon, and the manner the accused was executed on the deceased is corroborated by other eye witnesses.
Despite this shortcoming from this witness, that is of mentioning a knife, which is not supported by other witnesses, the court will regard him as a credible witness.”
34. Regarding the evidence of Ms Dambuza, because she had corroborated the appellant’s evidence in certain respects rather than supporting the state’s case, the magistrate reasoned as follows:
“If one looks at the evidence of this witness, I will say her evidence stands like a sore thumb from the evidence of all other witnesses. It is apparent in her evidence that for all intents and purposes she is testifying for the benefit or on behalf of the accused.
In fact, this is not surprising because this witness is the girlfriend of the accused. They live together. She has been assaulted on previous occasions by the accused, she has paid bail for the accused to come back and live with her.
Even on one of the assaults which were committed on her, she had paid bail for the accused on a previous assault when the accused came home, he again assaulted her, and then she laid another charge but again she went back, paid bail for him.
As I said that it is, in that regard that one should understand the evidence of this witness. She is also the only witness who had seen members of the public assaulting the deceased, no other eye witnesses or members of the public. They testified that the gate was locked, and the premises was fenced with a high fence and therefore nobody could gain access into the premises.
But when the witnesses was asked about the details regarding the assault, she testified that she did not see the assault, she only saw one member of the … community hitting the deceased once on his back, with a golf club.
This witness is the one who went to go and ask for help. She is also contradicted by the very witness that she went to call for help…
From her evidence, it is clear that this witness is, was giving evidence in order to benefit the accused, though she had called this witness to come and help, but now at the same time, she wants to take the witness out of the scene. In other words she does not know if this witness she had gone to call if the witness had come back together with her, or had come back to the scene, what was happening.
Because this witness testified she does not know if Nkosinathi Gotyana had followed her, she did not see him at the scene. This witness also denied that when she called Nkosinathi, she called him saying come and help, my boyfriend is killing another person because that was the evidence of that witnesses, that when she was called, the witness told her that come please and help, the accused is killing someone at home.
However, the evidence of this witness, she testified that she, when she arrived at the house of this man, Nkosinathi she gave him a cell phone to phone the police. In fact it will seem that she wanted that to be the emphasis in her evidence or her version.
It is clear from the evidence of this witness that she is blinded by love when it comes to the accused and that the accused cannot do no wrong (sic). As I have already mentioned that she stays with him, pays him for bail, even if he comes back and assaults her. She is also paying for the services of the attorney in this present matter.
She also paid for bail for him in this matter. Clearly, her evidence, when it comes to what happened on that day, regarding the deceased, should be taken with a pinch of salt, especially when it is not corroborated by other eye witnesses.
Her evidence regarding this count, therefore this court regards it as her evidence as not reliable.”
35. Regarding Nkosinathi Gotyana he observed that he was an independent witness (albeit a reluctant one because he had to be subpoenaed and brought to court on a warrant for his arrest) minding his own business at home when Ms Dambuza came to seek his assistance. When he arrived on the scene he observed exactly what had already been described to him by Ms Dambuza. (This was that the appellant was “murdering” the deceased.) His own observations at the scene concerning the manner in which he says the deceased was assaulted and with what weapon was corroborated by other witnesses. He pointed out that no motive had been suggested by the appellant’s legal representative when he testified as to why he would falsely implicate the appellant. The magistrate found him to be a “credible and competent witness whose evidence should be believed …”
36. The latter’s aunt, Ms Nomzama Gotyana, also made a good impression upon the trial court despite her tendency to interrupt the interpreter while he was speaking. This he simply attributed to her “chatty” nature. She was open about why she had ignored the subpoena and had also being caused to be arrested to come and testify. Concerning her performance as a witness he noted that she gave her testimony in a clear and straight forward manner. She was observant, noticing for example that the deceased had bled from the mouth, an aspect which was in conformity with both the post mortem report and the police photographs. He also reasoned that her objectivity had not been questioned during cross examination and that no ulterior motive had been attributed to her by the appellant’s legal representative.
37. His fleeting outline of Constable Jonker’s testimony was that it related to formal evidence only.
38. Regarding the appellant himself the court observed him to be an evasive witness, prone to long-winded, nonsensical ramblings, who presented an improbable and concocted story. He adjusted his evidence and his conspiracy theories that he was falsely implicated by the state witnesses who did not support his case were quite fanciful. Further, although it was his case that each witness had a particularly vindictive motive against him, the theories were never put to the witnesses to refute or to defend themselves. (Except the limited aspect of Mr Tyse harboring a grudge over his spurned love proposal to Ms Dambuza). The appellant appeared to flummox even his own legal representative when he changed his evidence to say that the weapon he used to defend himself was not a pick handle, but rather an axe handle which was of a shorter length. The court considered that when all the evidence was viewed in its totality, the appellant’s version was so riddled with contradictions, inconsistencies and improbabilities to such an extent that it could not be said to be reasonably possibly true.
39. On the question of apparent contradictions between the state witnesses regarding references to time, the court was not overly concerned, it being clear that the incident “happened in the morning” and that the witnesses had mostly estimated the time.
40. The general principles according to which a court of appeal should consider a matter before it are set out in R v Dhlumayo[1]. In this regard, the court of appeal must bear in mind that the trial court saw the witnesses in person and could assess their demeanour. (In this instance the court was at a particular advantage too in that the magistrate clearly understood the subtle nuances of the language spoken by the appellant and most of the witnesses, namely isiXhosa.) If there is no misdirection of facts by the trial court, the point of departure is that its conclusion was correct. The court of appeal will only reject the trial court’s assessment of the evidence if it is convinced that the assessment is wrong. If the court is in doubt, the trial court’s judgment must remain in place.[2] Courts of appeal have greater liberty to disturb findings of a court a quo when dealing with inferences and probabilities.[3] The court of appeal does not zealously look for points upon which to contradict the trial court’s conclusions, and the fact that something has not been mentioned does not necessarily mean that it has been overlooked. The court of appeal’s doubts about the trial court’s correctness on the facts are insufficient to set aside the decision.[4] Nevertheless it is the duty of the court of appeal to reject the conclusion of the trial court on a factual question if the appeal court is convinced that the conclusion is wrong.
41. A further principle of relevance, one which the trial court itself alluded to, is that enunciated in S v Van Der Meyden[5] concerning a trial court’s obligation to account for all the evidence given at the hearing in determining whether to convict or acquit on the basis of the well-established test:
“The proper test is that an accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is reasonably possible that he might be innocent. The process of reasoning which is appropriate to the application of that test in any particular case will depend on the nature of the evidence which the court has before it. What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false; some of it might be found to be unreliable; and some of it might be found to be only possibly false or unreliable; but none of it may simply be ignored.”
42. Save for two aspects which I will presently deal with, in this instance the trial court appeared to give thorough consideration to all the evidence before it and examined it pointedly against the background of the entire montage of evidence. It also applied the correct standard of proof, recognizing the premise that the onus was on the prosecution to prove its case beyond reasonable doubt. It also aptly made the observation that a court does not have to be convinced that every detail of an accused’s version is true but that he can be convicted if the court finds that not only is his version improbable, but that it also falls beyond reasonable doubt. (See in this regard S v Schackell.[6])
43. Despite the magistrate’s exhaustive and extensive assessment aforesaid, Mr Geldenhuys maintained that he misdirected himself by ignoring material contradictions. These are the following:
43.1 The evidence of Mr Tyse that the appellant stabbed the deceased, an aspect in respect of which he was silent in his evidence-in-chief. Neither of the two other witnesses made mention of the stabbing;
43.2 Both Mr Tyse and Nonzamo Gotyana testified that the gate to the appellant’s yard was closed when the assault took place, in contrast to that of Nkosinathi Gotyana’s evidence that he entered the yard and that the gate was unlocked;
43.3 Nkosinathi Gotyana claimed to have entered the yard in an attempt to intervene in the assault, whereas Mr Tyse and Nonzamo Gotyana did not support his evidence in this regard;
43.4 Neither Mr Tyse nor Nonzamo Gotyana supported Nkosinathi Gotyana’s evidence that a neighbor was also present inside the yard when the assault took place;
43.5 Nkosinathi Gotyana contradicted his police statement when he says that Ms Dambuza was in the yard with him, the deceased and the appellant;
43.6 Nonzama Gotyana contradicts herself regarding the aspect when Ms Dambuza also accused the deceased of being a thief; and
43.7 Nonzamo Gotyana contradicted the medical evidence when she says the deceased’s arm was injured by the appellant, even to the extent that a bone was “emerging out of his arm”.
44. Concerning the first contradiction the magistrate especially held that Mr Tyse’s evidence regarding the stabbing was not reliable and that there was no corroboration concerning that aspect. In my view therefore he could not be said to have ignored the contradiction. On the contrary, he appeared to follow the logic that Mr Tyse’s evidence concerning the stabbing was irreconcilable with an unassailable fact, namely that the deceased’s body bore no stab wounds, and that such evidence in that particular respect fell to be rejected. It is not clear why the witness insisted that the appellant had stabbed the deceased even to the extent of defining the number of blows which he supposedly saw and demonstrating how the stabbing had happened. Perhaps for this reason the observation by the magistrate that Mr Tyse could be regarded as a “credible witness” was misplaced, but certainly his testimony, to the extent that it was corroborated by or fitted hand in glove with the testimony of the other witnesses, cannot simply be struck from the record.
45. The contradictions regarding whether the gate was locked or unlocked are in my view not material and do not detract from the critical issue, which is whether the deceased was attacked by the appellant or the supposed mob. Even on the appellant’s version access to the premises was indeed obtained, albeit forced. Each witness also had a different vantage point, both in terms of physical space and time. It is however more probable than not that when Ms Dambuza went to seek the assistance of Mr Gotyana the gate was, of necessity, unlocked.
46. Similarly the contradictions regarding whether Mr Gotyana entered the yard to intervene in the assault, or whether a neighbor was also present, are not material. I have already alluded above to each witness’s unique vantage point in a fast moving scene. Their separate accounts of what was seen and when they say they saw what they did further appears to fit seamlessly, or at least nothing jars or is inherently improbable, with the entire body of the evidence.
47. Regarding the contradictions concerning whether Ms Dambuza was in the yard with Mr Gotyana or outside of it, and what he did or did not tell the police, is also not of a damning nature and the witness adequately in my view accounted to the trial court for discrepancies between his oral testimony and his evidence deposed to in the affidavit. In any event it appeared to be common cause that - save for when Ms Dambuza absented herself from her premises to elicit the help of Mr Gotyana, she was present on the scene at all times. The contradiction regarding the accusation of the deceased as a thief is neither here nor there, and again it appears to have been commonly accepted that the deceased had the night before been up to no good in the neighbourhood.
48. Much was made of Ms Gotyana’s observation of the deceased’s apparent injuries being in conflict with the medical evidence, but there is in my view no merit in this criticism. The appellant’s legal representative wrongly put it to her that it was not stated in the post mortem report that “… the deceased had any injuries on his arm, not even a broken arm? In other words, no injuries, not a bruise, not a laceration, not a bone sticking out, nothing?” Whilst Ms Gotyana may have struggled to convey what she visualized at the scene, it was patently wrong that these were not among the injuries sustained by the deceased. He sustained a fractured right humerus and bruises and abrasions to his left shoulder area. Ms Gotyana’s quaint description of what she says she saw co-incidentally fits in with both the evidence that the deceased’s arm was singled out for attack, and the contorted way in which it is bent back as depicted in the police photographs.
49. The trial court ought perhaps to have focused more attention on the evidence of Constable Jonker (in the context of the particular defence raised by the appellant) rather that passing it off as being merely formal in nature, but an examination of it does not in my view support Mr Geldenhuys’ submission that it is more consistent with the appellant’s version of what he says happened. According to Constable Jonker’s evidence he fought hard to bring calm and order to the seething crowd which was agitating to get close to the deceased and to finish him off. He was firm however that none of these persons got anywhere near to him. It is improbable that if the crowd he described were responsible for assaulting the deceased in the first place, that they would want to “finish him off”. What Constable Jonker’s evidence supports only is that there was a crowd and that they were upset and wanting to get at the deceased because he had made himself guilty of robbing others in the community. Indeed this was common cause.
50. Quite correctly no objection was taken against the trial court’s remark that the evidence of Ms Dambuza (to the extent that it contradicted that of the Gotyana’s and Mr Tyse’s) should be taken with a pinch of salt because she was biased in favour of the appellant. It was only she who supported the version of the appellant that the mob had attacked the deceased. Both Ms Dambuza and the appellant were notably vague in their detail of this attack and the identity of the supposed perpetrators. They also contradicted each other concerning the specific nature of the weapons used in the attack or how the members of the mob were armed. Allied to this version was the utterly far-fetched notion in my opinion that the state witnesses – all three of them, had lied about being on the scene (and therefore seeing what they say they saw), yet corroboration of their testimony was to be found in a number of respects in the quaintest and smallest of the details making up the whole mosaic of the evidence, such as for example the nature of the murder weapon and even how the appellant had used a plastic crate for effect to deliver some of the blows to the deceased.
51. Mr Geldenhuys submitted that the criticism leveled against the appellant’s version by the trial court that he did not see the deceased get struck on his head is unjustified because the appellant’s view of the assault to the deceased’s head may have been obstructed at some point. So too he submitted that the trial court’s criticism of a perceived material contradiction in his evidence regarding the weapon he used is unjustified. However in my view the trial court did well to see through the inherent improbabilities in the appellant’s version and to find him a mendacious witness who adapted his testimony as the need arose. These two aspects particularly in my view exemplified the appellant’s guile in this regard.
52. There is therefore in my view nothing which leads me to conclude that the magistrate erred in his finding as a fact that it was the appellant, without any help from the so-called mob, who was responsible for administering the fatal injuries to the deceased.
53. Regarding the question of the sentence imposed, I am also not satisfied that there is any basis upon which to interfere with the imposition of the prescribed minimum sentence in the circumstances. It was not evident that the appellant, or Ms Dambuza for that matter, had lost anything as a result of the deceased’s trespass on their premises. Moreover the deceased was disarmed shortly after the appellant confronted him and there was no reason to continue assaulting him once he had been appropriately subdued. Even accepting that the appellant might at first have been justified in defending himself, the continued and sustained attack upon the deceased thereafter was entirely gratuitous, cruel and aggressive. The assault was a sustained and a vicious one which continued even after the deceased begged for forgiveness and lay helpless on the ground. Even if he was branded a thief, he did not deserve his untimely end. The appellant ought not to have taken the law into his own hands, a tendency which appears to be quite commonplace in our society nowadays. The observation too the appellant is predisposed towards violence, evident from the other five convictions against him arising from the assault on Ms Dambuza, her mother and her sister and from the unchallenged testimony delivered regarding these separate charges against him, was well made by the trial court.
54. In conclusion the magistrate therefore correctly found that no substantial and compelling circumstances existed to justify the imposition of a lesser sentence than the prescribed minimum sentence of fifteen years’ imprisonment.
1. In the result the appeal is dismissed.
B HARTLE
JUDGE OF THE HIGH COURT
I AGREE
P TSHIKI
JUDGE OF THE HIGH COURT
DATE OF APPEAL: 23 APRIL 2014
DATE OF JUDGMENT: 23 JUNE 2014
Appearances:
For the appellant: Mr D P Geldenhuys, Grahamstown Justice Centre, Grahamstown.
For the respondent: Mr D Els, Director of Public Prosecutions, Grahamstown.
[1] 1948 (2) SA 677 (A).
[2] S v Robinson 1968 (1) SA 666 (A) at 675H.
[3] Minister of Safety and Security v Craig 2011 (1) SACR 469 (SCA) at [58].
[4] Kunz v Swart 1924 AD 618 at 655; Taljaard v Sentrale Raad 1974 (2) SA 450 (A).
[5] 1999 (2) SA 79 (W) at 82 D - E.
[6] 2001 (4) SA 1 SACA par 30.