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IN THE HIGH COURT OF SOUTH AFRICA

BISHO

CASE NO. CC1/2007

In the matter between:

THE STATE

and

DUMISA MAKOM 1^ST ACCUSED

THEMBELA MAKOM 2^ND ACCUSED

JUDGMENT

DHLODHLO ADJP:

1. The two accused who are brothers are before a Judge sitting alone. The first accused is 24 years old and the second one is two years older.

2. They are charged with one count of murder. It is alleged that on or about the 12^th day of August 2006 at or near Mnqaba rural village, DebeNek in the magisterial district of Middledrift, they, acting with common purpose, unlawfully and intentionally killed Zonwabele Sigutya, a male adult person.

3. The charge is accompanied by a warning to the effect that, if they are convicted, the provisions of s 51(1) of the Criminal Law Amendment Act 105 of 1997 which relate to minimum sentences, will be applicable because the murder was premeditated and was committed by two persons who were acting in the execution or furtherance of a common purpose or conspiracy.

4. Both accused pleaded not guilty. The first accused elected to remain silent while the second one added that on the day in question he was not present where the crime was allegedly committed but was present on the following day when the first accused was being attacked by members of the deceased’s family after the death of the deceased.

5. Both accused admitted that the deceased died as a result of injuries he sustained on 12 August 2006 at Mnqaba, DebeNek and that his body did not receive further injuries between that time until Dr Mnyendeki performed a medico-legal post-mortem examination on the said body on 14 August 2006. They further admitted that the observations and findings of Dr Mnyendeki during the post-mortem examination are true and correct.

6. Under external appearance of body and condition of limbs, Dr Mnyendeki recorded the following:

“(10) 2 incised wounds at (R) supraclavicular area

(11) 5cm incised wounds at (L) chest anterior nipple level

(12) 2cm incised wounds at (L) hand dorsum

(13) 2cm incised wounds at (L) elbow

(14) 3cm incised wounds at (L) chest posterior

(15) 4cm incised wounds at (L) chest posterior.”

7. Under head and neck Dr Mnyendeki observed the following:

“Extensive fracture of skull from (L) temporal to (R) temporal across the vault of the skull

Multiple fractured areas at base of skull

Large Subdural Haemorrhage at both temporal & occipital lobe.”

8. The death was caused by head injuries.

9. The State called two witnesses, namely Simphiwe Fanti, hereinafter referred to as Fanti and Xatyiswa Maweni, hereinafter referred to as Maweni.

10. Fanti is 19 years old and is a learner doing Grade nine. His evidence may be summed up as follows:

He has lived at Mnqaba village since birth and has known the two accused who live in the village for a very long time.

11. On 12 August 2006 he was at a shebeen known as France’s shebeen in that village with his friends and they drank beers. He remained sober. When the shebeen closed at 02h00 he and Luyanda accompanied a lady by the name of Nosisa to her home.

12. At the shebeen he saw the deceased and the first accused. Both were drinking. Fanti observed that the deceased was drunk.

13. After they had parted ways with Nosisa they walked towards their homes. They saw the deceased near the homestead of the two accused. The deceased was standing near the first accused.

14. The deceased was demanding his money from the first accused, saying:

“Dumisa, please give me my money”,

and the first accused responded saying:

“Hey! Sigutya, I do not have your money.”

15. The second accused appeared and said:

“Majita (guys) what are your doing here? Are you here to attack us?”

16. When he (Fanti) and Luyanda first saw the deceased standing near the first accused he was holding the left side of his chest. They, however, did not see blood.

17. Fanti pulled the deceased who was his uncle away suggesting that they leave. The deceased was drunk. That is why Fanti and Luyanda had to pull him towards their homes. The first accused said that the deceased should leave him alone.

18. The second accused said that they should wait there and that he and the first accused would return. Both accused walked into their homestead.

19. The deceased who was drunk wanted to follow them to their home. Fanti and Luyanda again pulled him towards their homes.

20. As they were moving away the two accused appeared. The first accused carried a sabre and the second one carried a spade. Fanti described the sabre as an object which is sharp on one side with a black handle and he indicated that it was about 40cm long. Fanti said that the second accused also carried a knife. He did not see what type of knife it was. He saw the knife when it had broken and the deceased was on the ground.

21. As they were pulling the deceased towards their homes the deceased fell down near the gate of Ma-Ndaba’s homestead. After the deceased had fallen down he removed his hand from the left side of his chest.

22. The two accused chased them. Luyanda went to awaken his father and Fanti jumped over the fence of Ma-Ndaba’s homestead.

23. Fanti saw what was happening to the deceased after he and Luyanda had run away. The two accused went to the deceased after chasing them. When they got to him the first accused said:

“my brother, here is this dog.”

Both hacked the deceased with a spade and a sabre. At that stage Fanti was peeping through a window of Ma-Ndaba’s house.

24. Fanti could not say who of the two accused delivered the first blow but he saw that both were hacking the deceased.

25. It was about 03h00. He said that the attack lasted about 20 minutes. He saw that at a certain stage of the attack the second accused smacked the first one, asking him why he had stopped attacking the deceased. The two accused left the deceased on their own accord.

26. Later Fanti with others took the deceased into the premises of Ma-Ndaba’s homestead. The deceased was bleeding through wounds on his body.

27. Fanti said that the two accused were arrested at their home at about 10h00 on that Sunday morning. Villagers converged at the accused’s home demanding that they come out of a house. A spade, a dagger and an okapi knife were found where the two accused were arrested. These weapons were exhibits in court.

28. Before the accused were arrested, the second accused wielded a spade inside a house in the homestead saying that whoever wanted them should enter the house.

29. Fanti said that on the early morning in question there was moonlight and that he could see clearly.

30. He denied that he, Luyanda and the deceased attacked the first accused and that he (the first accused) demanded his money from the deceased.

31. Fanti denied that the second accused was not present at his home and that he did not attack the deceased on that morning.

32. When he was shown the three exhibits in court, Fanti said that they were not the weapons the two accused used to attack the deceased.

33. When he was re-examined by the Court, Fanti said that the first accused was drunk and that he did not know what the second accused’s state of sobriety was on that morning.

34. Xatyiswa Maweni’s evidence is briefly the following:

35. She is 23 years of age and went to school up to grade twelve. She has lived at Mnqaba for about three years.

36. She knows the two accused very well. They used to come to her home which ran a public phone business. The two accused would come to make telephone calls.

37. Her family and that of the two accused are on friendly terms.

38. On 12 August 2006 at her home they were awakened by her brother Luvuyo, also known as Mabuti, who knocked on a window requesting them to furnish him with an ambulance telephone number. Luvuyo said that the deceased was being hacked at the gate.

39. Maweni said that they opened the door immediately and she called Gida hospital. She was told to await the arrival of an ambulance.

40. They walked out of the house and saw people hacking a person at the gate. She saw that the two accused were hacking the deceased who was lying on the ground.

41. She observed that both assailants used spades to hack the deceased.

42. Her gate is a distance of about 30 metres (indicated) from that of the homestead of the two accused.

43. When the two hacked the deceased they said that they “had finished the dog – it is dead.”

44. One of the two accused was wearing a white T shirt. He is the one who said that they had finished the dog. Maweni could not differentiate their voices.

45. Maweni said that they were about 10 metres away from where the deceased was being hacked. She said that it was about 01h45. There was moonlight and an electric lamp outside their house was burning.

46. She was unable to say or estimate how many times they hacked the deceased.

47. After they had hacked him the two accused went home. Maweni said that they opened the gate and took the deceased into the house. He was still alive but could not talk. Maweni observed a wound in the deceased’s throat. The deceased was later taken to hospital by members of his family.

48. Under cross-examination, Maweni re-iterated that the second accused was one of the two persons who hacked the deceased.

This concluded the evidence for the State.

49. The first accused’s version is as follows:

On 11 August 2006 at about 20h00 his sister Khunjuzwa gave him a R5,00 coin and asked him to buy a loaf of bread at a hawker’s place.

50. On his way to the hawker’s place he met the decased who asked him (the first accused) to offer him a cigarette. He told the deceased that he did not have one. He (the first accused) gave the deceased the R5,00 coin and asked him to purchase a loaf of bread and a cigarette he wanted. The deceased entered the hawker’s place and walked out of the place smoking a cigarette but with no bread. The deceased did not return to the first accused but took another direction.

51. The first accused asked the deceased where a loaf of bread was. The deceased insulted him and said that he (the first accused) should not take him for granted. The deceased proceeded towards France’s shebeen and the first accused followed him.

52. At the shebeen the first accused saw the deceased talking to Fanti and Luyanda. He said that he felt that he could not return to his home without the money. He stood at a certain corner at the shebeen. He had tried unsuccessfully to get money from patrons at the shebeen.

53. After the shebeen had closed he returned to his home. He saw the deceased and asked him to return the money. The deceased, Fanti and Luyanda hit him with clenched fists and trampled on him.

54. He was able to free himself and ran to his home towards the house in which he usually slept. While he was outside the house to relieve nature he saw someone near a window of the house. That person was the deceased. He asked him who he was and what he wanted there. He then addressed the deceased saying:

“Zonwabele, what are you doing here. Is it not enough, that you have assaulted me?”

55. Two people appeared. He recognised them as Fanti and Luyanda. They both carried sticks. They approached him and chased him. The deceased was carrying a fixed-bladed-knife.

56. He ran and entered a certain house. He picked up a spade and stood inside the house near the door in order to prevent them from entering the house.

57. He did not report to any one that he had been attacked because members of his family were asleep. He reported the attack to the second accused when he arrived later that morning. He sustained injuries. His face was swollen. There is, however, no evidence to support the alleged assault.

58. Later on that morning he reported the attack to members of his family who suggested that he report the incident to the police.

59. On his way to DebeNek police station he met some young men namely Mqotiti, Andile and Masixole who were driving a motor vehicle. They offered him a lift but he declined the offer. The young men attacked him.

60. The second accused arrived to defend him. He was carrying an okapi knife which was already open. The first accused then ran to his home.

61. He was arrested by the police later that morning. The police found the second accused carrying a spade.

62. Under cross-examination, the first accused said that while he was near the door of a house at his home, he struck someone four times with a spade. He did not know where he struck that person and he does not know who that person was but he was one of the three who attacked him. He did not know whether he caused skull fractures. Asked whether a person with a fractured skull could run away, the first accused answered in the affirmative. Under re-examination by the Court, he said that he was not drunk as he had not consumed liquor on that day.

63. He closed his case without calling any witnesses.

64. The second accused re-iterated that at the time when the deceased was allegedly attacked he was not present at his home. He had visited a friend by the name of Mtunzi Sonyati in order to view certain programmes on television. He returned to his home sometime before 03h00 on 12 August 2006.

65. On his arrival at his home the first accused who is his younger brother reported to him that he had been attacked by Fanti, Luyanda and the deceased. Later on that morning he told the first accused to report to their sister and their father that he had been attacked. The second accused said that the first accused was advised to report the attack to the police.

66. He said that later Mtunzi Sonyati told him what was happening to the first accused. He armed himself with a knife and went to defend the first accused. When he approached the scene the young men ran away. He and the first accused ran away to their home. The young men chased them. Members of the deceased’s family and some community members joined the three young men.

67. He said that he knew nothing about what had happened to the deceased. He armed himself with a spade and said that whoever wanted to enter the house could do so. He said that he heard about the death of the deceased at the police station later on that morning.

68. Under cross-examination, the second accused said that there was no animosity between them and Fanti and Maweni. However, he said that he would say that they were saying what they told the Court because they do not like him. But he did not know why they do not like him. He was asked why in his statement to the police he did not say that he was at Mtunzi Sonyati’s place. He said that he did not tell the police because they did not ask him and that it was their duty to ask him.

He did not call any witness.

69. Mr Walters for the State submitted that there were minor contradictions in the evidence of Fanti and Maweni in as far as the weapons used were concerned. One of them was obviously mistaken. He submitted that the version of Fanti was consistent with the nature of the injuries sustained by the deceased and that seven incised wounds were obviously caused by a sabre. He submitted further that both witnesses were consistent in as far as events were concerned. Both witnesses knew both accused very well. There could have been no mistaken identity. Moreover there was moonlight and an electric lamp light. Mr Walters submitted further that the first accused’s evidence is fraught with improbabilities. For instance, how could a person with a fractured skull be able to run away?

70. In as far as the second accused is concerned, Mr Walters submitted that he first raised the defence of alibi in Court. His witness is available but he elected not to call him.

71. Mr Ndunyana for the first accused argued that State witness Maweni was far from the scene and that she could not have seen clearly what was happening.

72. Ms Mtini for the second accused argued that Fanti is related to the deceased and that he was biased. In as far as raising the defence of alibi at the time of arrest, she referred the Court to S v Thibus and another 2003(2) SACR 319(CC) wherein it was held that an arrested person has the right to remain silent in terms of s35(1)(a) of the Constitution. The Court was divided on whether the late disclosure of an alibi was one of the factors to be taken into consideration in evaluating the evidence of the alibi.

73. In the present case the Court will not consider as a factor in evaluating evidence the fact that the alibi of the second accused was raised late. It will evaluate the evidence of the two State witness who said that he was one of the two persons who attacked the deceased.

74. There were minor contradictions in the evidence of the two State witnesses. In his police statement Fanti said that the first accused was carrying a “shinny knife”. In his evidence he said that the first accused was carrying a sabre which he described as an object which is harp on one side with a black handle which was about 40cm long. The Court does not find the two statements to be materially different.

75. The Court does not believe the version of the first accused that he gave a R5 coin to the deceased at 20h00. He remained at the shebeen until 02h00 on the following morning without reporting to his sister that he could not purchase bread because the money had been taken by the deceased. It is more probable that the deceased went to the home of the two accused to demand his money from the first accused.

76. The two State witnesses had adequate opportunity to witness the attack by persons who they knew very well. There could have been no mistaken identity. There is no reason to doubt or reject their evidence.

77. Having considered the evidence adduced in its entirety, the Court believes that the State has proved its case against the two accused beyond reasonable doubt.

78. They are according found guilty as charged.

_____________________________

A E B DHLODHLO

ACTING DEPUTY JUDGE PRESIDENT

09 MARCH 2007

HEARD ON: 05, 06, AND 07 MARCH 2007

FOR THE STATE: MR G WALTERS

FOR THE FIRST ACCUSED: MR L R NDUNYANA

FOR THE SECOND ACCUSED: MS N MTINI

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