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[2020] ZAECGHC 5
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Duba v S (CC58/2019) [2020] ZAECGHC 5 (21 January 2020)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GRAHAMSTOWN)
CASE NO. CC 58/2019
In the matter between:
MALIBONGWE DUBA Applicant
and
THE STATE Respondent
JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL
MBENENGE JP:
[1] On the night of 28 April 2018 Nomvula Eunice Mahlanyana (the deceased) died of stab wounds, three to her neck and another to her left cheek. On the same night, shortly prior to the demise of the deceased, Mr Sizwe Booi saw a man on top of the deceased; the deceased was half- naked, and so was the man. He was moving his body as if engaged in sexual activity; upon the emergence of Mr Booi, he fled the scene in a half-naked state.[1]
[2] Thereafter, a naked man with a white object in his hand was seen by Ms Siphosethu Mahlanyana running through the street shortly before she got home, to be told that her aunt (the deceased) had been killed.
[3] During the same night the applicant, who was naked, arrived at the home of Mr Klass, asking for clothing, which he was supplied with.
[4] On the following morning, the applicant’s clothing was recovered abandoned not far from the spot where the body of the deceased lay. A white t- shirt was recovered at another spot, also not far from the scene, all this in circumstances where, during the ensuing trial, the applicant distanced himself from involvement in the commission of the offence, raising an alibi and, in pursuit thereof, explaining that “he had been at the vicinity where the deceased was found dead and that on the same night he was robbed of his clothing.”
[5] No robbery complaint was laid by the applicant with the police, and no reason for that was proffered. During the trial, the applicant contradicted himself in a material respect; testimony revealed that he had initially told the police that he did not know how he got to lose his clothes, yet during the trial he claimed to have been robbed of his clothing during the night in question. No explanation was proffered for this material contradiction.
[6] The Court concluded that the person who had been seen being on top of the deceased had been the owner of the clothing found at the scene of the crime. It reasoned:
“A lot of questions that spring to mind remained unanswered. If, as stated by the accused, he was, during the alleged robbery, hit with a stick on his nose resulting in him being unconscious, he would at least have borne an injury on the bridge of his nose, and the police or other persons who interacted with him would have observed the resulting injury or mark. Is it not strange that the accused was robbed even of his socks and underwear, and that subsequent to the alleged robbery the clothes were simply dumped where they were subsequently found? That is strange, indeed! Might it be that the alleged robbers put on the accused clothes purely with the view to killing and raping the deceased? That suggestion is highly incongruous and improbable. Why would the perpetrator(s) dump the clothes after executing the plan?”[2]
[7] The Court was thereupon satisfied that it had been proven beyond reasonable doubt that the applicant was the person that had been seen by Mr Booi being on top of the deceased. His version to the contrary was rejected as not being reasonably and possibly true; it was declared to be false and irreconcilable with the proven facts of this case.
[8] The applicant was accordingly found guilty as charged and thereupon sentenced to undergo 10 years’ imprisonment on the attempted rape charge, and to life imprisonment on the murder charge, both of which were ordered to run concurrently.
[9] He now seeks the leave of this Court to appeal against both convictions (attempted rape and murder), and against the sentence of life imprisonment on count 2 (murder).
[10] The application, in so far as it relates to the convictions, is founded on the contention that “the [applicant’s] version, despite containing contradictions and what appears to be a bizarre set of coincidences, is nonetheless reasonably possibly true (sic).” The sentence is under attack principally because “the [applicant’s] upbringing and life circumstances were not taken sufficiently into account.”
[11] I am of the view that the Court’s conclusions culminating in the impugned convictions are unassailable; no other court would come to a conclusion different from that arrived at by this Court.
[12] The bases of the application in relation to the sentence also do not pass muster. At mitigation stage, the applicant contented himself with statements from the bar, and did not testify under oath or place cogent evidence in support of the personal circumstances relied on, which the Court found unavailing.
[13] In Motloutsi[3] it was held:
“. . . . The other factor that militates against a conclusion that the respondent has shown genuine remorse is his decision not to testify in mitigation of sentence. His evidence would have demonstrated his candour, by subjecting his personal circumstances to the scrutiny of cross-examination. This may have assisted him in bringing to the court’s attention information about his background and upbringing, to enable the court to make a determination regarding his level of maturity and therefore his moral blameworthiness…”
[14] There is, in my view, no rational basis for concluding that there are prospects of success on appeal. Even a mere possibility of success, an arguable case, or one that is not hopeless, is not enough.[4]
[15] In all these circumstances, the application for leave to appeal is refused.
________________________
S M MBENENGE
JUDGE PRESIDENT OF THE HIGH COURT
Counsel for the Applicant : H McCallum
Instructed by : Legal Aid South Africa
Grahamstown
Counsel for the Respondent : H Obemeyer
Office of the Director of Public Prosecutions
Grahamstown
Date heard : 9 December 2019
Date judgment delivered : 21 January 2020
[1] He was completely naked on the lower body, and wore a whitish t-shirt on his upper body.
[2] S v Duba (CC58/2019) [2019] ZAECGHC 99; 2020 (1) SACR 66 (ECG) at para 20.
[3] The Director of Public Prosecutions, Limpopo v Motloutsi (527/2018) [2018] ZASCA 182 (SCA) (04 December 2018) at para 15 (Motloutsi).
[4] MEC for Health, Eastern Cape v Mkhitha and Another [2016] ZASCA 176 (SCA) (25 November 2016) at para 17.