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Cele v S (AR 81/08) [2010] ZAKZPHC 26 (25 May 2010)

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1IN THE KWAZULU-NATAL, HIGH COURT, PIETERMARITZBURG.

REPUBLIC OF SOUTH AFRICA

CASE NUMBER: AR81/08

In the appeal of;


ZAMANI INNOCENT CELE Appellant

and

THE STATE Respondent

___________________________________________________________________________

JUDGMENT

___________________________________________________________________________


VAN ZÿL, J.:-


  1. The appellant was charged with and convicted of murder before the Regional Magistrate, Camperdown. Following his conviction the matter was transferred to the High Court for sentencing pursuant to the provisions of section 52(1) of the Criminal Law Amendment Act 105 of 1997. The appellant appeared before Levinsohn DJP, who initially called for detailed reasons from the Regional Magistrate of the facts found to have been proved.


  1. After those reasons were delivered the learned Deputy Judge President was satisfied that the proceedings before the Regional Magistrate were in accordance with justice and confirmed the conviction of the appellant. The conviction was based upon the Regional Magistrate’s finding that the murder was premeditated. Having concluded that no substantial or compelling circumstances had been shown to exist and which would entitle the Court to depart from the prescribed minimum sentence of imprisonment for life, the appellant was sentenced accordingly.


  1. The matter now comes on appeal before the Full Court with the leave of the trial Court. The appeal is against conviction and, should that fail, then against the sentence of life imprisonment.


  1. The charge against the appellant arises from the death of the late James Mdlalose (the deceased), who was shot and injured during the evening of 30 September 2001 in Georgedale, near Pietermaritzburg. It is common cause that the deceased was at home that evening and was shot by an intruder in trying to make his escape. He was found in an injured state the next morning, where he had collapsed on the kitchen floor at his home.


  1. The deceased was taken to hospital where he was operated upon due to having suffered a gunshot wound during the attack. He subsequently died on 5 October 2001. According to the report of the post mortem examination conducted upon the body of the deceased by the district surgeon, the cause of death was bilateral bronchopneumonia and tubular necrosis, as complications of a laparotomy performed upon the deceased following a gunshot wound to the abdomen. The post mortem report was admitted by consent as exhibit “A” and the district surgeon was not called to give evidence.


  1. During the trial before the Regional Magistrate the State called only two witnesses. The first was that of Nonhlanhla Colleen Mdlalose (Nonhlanhla), a daughter of the deceased and the second that of Nana Doreen Mkhize (Nana), his sister. For the defence only the appellant himself gave evidence.


  1. The facts of the matter are somewhat unusual. The attack upon the deceased took place at night, where the deceased was attacked in his own home, after he had retired to bed. The appellant was admittedly present, but gave an exculpatory explanation in the course of his evidence.


  1. The only eye witness was Nonhlanhla. She described the dwelling in which they lived at the time as comprising three rooms. Her father the deceased occupied his own bedroom. She, Nonhlanhla, occupied the other room where she shared the bed with her sister, whilst her brothers slept in the third room, which also served as the kitchen.


  1. The dwelling was undoubtedly of poor construction. Nonhlanhla described how the interior of her bedroom was partitioned from the other rooms by corrugated iron, which did not extend to the ceiling, so that when she sat up in bed she was able to see into the kitchen.


  1. The entrance to the dwelling was a door situated in the kitchen. In order to bar entry from outside the door was “locked”. Nonhlanhla described the procedure adopted as follows;


“Well we lock the door by use of a small latch and we also put a bench behind the door.”


  1. Nonhlanhla related how at about 02h00 she was asleep in her room when she was awoken by a noise at the door, as though someone was shaking it. She sat up and observed the appellant and his companion entering the dwelling through the kitchen door and approaching her bedroom, but suddenly and for no apparent reason they turned around and walked out again, pulling the kitchen door closed behind them, but not entirely closing it. Nothing was said.


  1. Nonhlanhla said that she remained sitting in her bed because she had “lost her sleep”, but did not report to her father what had occurred. After the elapse of approximately half an hour she said that the appellant and his companion returned and again entered the kitchen, This time the appellant struck a match and lit a candle in the kitchen. She observed that he had, what must have been a handgun, in his hand. Using the lit candle to find his way and trying to shield or hide the gun he was carrying, the appellant then approached Nonhlanhla who was still sitting upright in her bed. He announced that it was the day that he and others had come to kill her father. Nonhlanhla enquired why they intended killing him, and according to her the appellant replied that it was because he was a dog.


  1. It appears that the deceased must have woken up and realised he was in danger because at that stage he apparently made a dash for the kitchen door in order to escape from the dwelling. According to Nonhlanhla, the appellant then fired one or more shots at the fleeing deceased and then followed him out of the dwelling in pursuit. According to Nonhlanhla she also followed and watched from outside the kitchen door.


  1. She claimed the area outside in the direction in which her father had run was well lit. She heard a shot and then saw her father falling down. At that stage she started screaming, as a result of which the appellant, who was now in the presence of two companions, started coming towards her. She fled and claims that a shot, or shots, were fired in her direction but she was not hit. She found shelter with neighbours and returned home the next morning to find her injured father in the kitchen of their home.


  1. The relevance of the evidence of Nana, the second state witness, relates to animosity which, according to her, existed between the deceased and the appellant. It appears that the appellant, according to Nonhlanhla, was somehow related to her mother, who in turn was estranged from the deceased and at the time living with her boyfriend, one Mzi Dlamini (Mzi) and known to Nana as Manuku. The appellant and the latter were friends and the appellant, at times, had acted as an intermediary between the deceased and his wife. According to Nana the deceased had on an occasion and in her presence accused the appellant of being sent there by Mzi and had warned him never to come to the residence of the deceased again.


  1. Nana was not an impartial witness. Not only was she the sister of the deceased, but she undoubtedly believed in the guilt of the appellant and accused him outright of having killed the deceased.


  1. The defence version put a different slant upon the events of that fateful evening. According to the appellant he was at home when he was approached by the wife of the deceased, known to him as Sdudla and her boyfriend Mzi with a request for assistance to fetch her belongings, comprising some clothing, from the home of the deceased.


  1. The appellant claimed to be entirely unaware of any animosity between the deceased and Mzi because he thought the identity of Sdudla’s boyfriend was not known to the deceased. He was only aware of a strained relationship between the deceased and Sdudla. He also denied the incident as related by Nana where he had been warned off by the deceased. According to the appellant he agreed to assist and accompanied Mzi and Sdudla to the homestead of the deceased to fetch the latter’s belongings.


  1. Upon arrival at the homestead Sdudla did not wish to enter the homestead and waited unseen outside. As a result only the appellant and Mzi proceeded and entered the home of the deceased where, according to the appellant, he engaged the deceased in conversation explaining that they had come to collect clothing on behalf of Sdudla.


  1. Whilst conversing with the deceased, the appellant noticed that Mzi had suddenly produced a firearm and fired at the deceased. The appellant demanded to know what he thought he was doing, but Mzi told him to keep quiet because it had nothing to do with him. At that stage Nonhlanhla appeared and Mzi fired a shot, apparently trying to hit the child, but the appellant restrained him and they left the dwelling, joined up with Sdudla. He later parted company with Sdudla and Mzi and the latter two proceeded to the residence of Mzi’s sister.


  1. The appellant denied that he had any prior knowledge that Mzi was armed, that he intended to harm the deceased in any way or that he, the appellant, in any manner associated himself with, assisted in, or facilitated the attack launched by Mzi upon the deceased. Insofar as Nonhlanhla implicated him as the person who carried a firearm and shot at her father the deceased, he denies this and suggests that Nonhlanhla must be mistaken.


  1. Broadly that sets out the respective versions of the state and the appellant. Whilst there are many parallels, there are also significant and irreconcilable differences. Crucial to the evaluation of these versions is the fact that Nonhlanhla is a single witness and was the only witness called by the State regarding the events of that fateful evening. Consequently the cautionary rule relating to the evidence of single witnesses applies to her evidence.


  1. Section 208 of the Criminal Procedure Act 51 of 1977 provides that an accused may be convicted of any offence on the single evidence of any competent witness. However, even where sec. 208 has been satisfied the cautionary rule of practice requires recognition by a trial Court of the dangers inherent in the acceptance of the evidence of a single witness and striving for the safeguard of some factor reducing the risk of a wrong conviction, such as corroboration. By corroboration is meant other evidence which supports the evidence of the single witness and which detracts from the evidence of the accused and renders it less probable upon one or more of the issues in dispute (R v W 1949 (3) SA 772 (AD) at 778/9).


  1. Satisfaction of the cautionary rule does not per se justify the conviction of an accused. In the final analysis the ultimate requirement is still proof beyond reasonable doubt, which depends upon consideration of all the evidence and the degree of safeguarding in the particular circumstances of each case.


  1. There are certain features of the evidence of Nonhlanhla which, in my view, tend to detract from the quality and reliability thereof. The attack upon her father occurred, according to her, during the second intrusion into their home that night. The initial intrusion, as described by her, appears strange. The kitchen door was forced open with enough noise to wake and alarm her, yet she did not cry out or alert her father sleeping in the adjoining partition. Nor did any of her siblings wake up. Her evidence was that her brothers were sleeping in the kitchen, in close proximity to where the door was forced, yet nobody but Nonhlanhla woke up.


  1. At the stage of the first intrusion the only light source was moonlight coming in through the open kitchen door, but Nonhlanhla claimed nevertheless to have been able to reliably recognise the appellant as one of the intruders. However, from where she was situated it is likely that the intruders would have had the kitchen door at their backs as he approached Nonhlanhla and when they turned and left, their backs would have been towards Nonhlanhla and their faces obscured. A strong suspicion arises that Nonhlanhla may have transposed an identification she made on the second occasion, also onto the first intrusion.


  1. Then there is the strange behaviour Nonhlanhla attributed to the appellant, as one of the two intruders. During the first intrusion, having entered the dwelling without meeting any resistance, she said that they simply turned around and left again. There would appear to be no logical explanation for this strange turn of events. Then, during the second intrusion, she said that the appellant, having again entered the dwelling accompanied by a companion, this time lit a candle and made his way, not towards the deceased as the object of the intrusion, but to the witness. Even more strange is the announcement she then attributed to the appellant, namely that he and his companion had come to kill her father because he was a dog. There does not appear to be any logical reason why the appellant should have felt the need to approach and make this announcement to the witness, at that stage a young girl some 12 years of age.


  1. There is also the issue of the locality where the deceased was shot. According to Nonhlanhla her father ran from the dwelling and was shot and collapsed some distance from home. However, he was found the next morning inside the dwelling where he had collapsed in the kitchen. There is no corroboration for the evidence of Nonhlanhla on this issue, but the locality where the deceased was discovered the next morning is more consistent with the version of the appellant as to where the deceased was when he was shot.


  1. Nonhlanhla gave evidence on 9 February 2007 about an incident which occurred on 30 September 2001, almost six and a half years earlier. At the time of the incident she was about twelve years of age. The time lapse is considerable and assumes even greater importance with regard to a witness so young at the time of the incident. It is difficult to assess how the passage of time may have affected her recollection of events.


  1. This difficulty is compounded by the witness Nana. It is unclear where Nonhlanhla spent the intervening years following the death of the deceased, but it is clear that she had contact with Nana, who firmly expressed her conviction of the guilt of the appellant in regard to the death of her brother, the deceased. What is disturbing in this context is Nana’s comments in the course of cross examination, when discrepancies between her evidence and that of Nonhlanhla were pointed out to her. She responded that -


“She (Nonhlanhla) did not know what she was saying. She said she was scared when she testified here in court and said things she did not know,”

  1. The extract quoted above not only casts doubt upon the accuracy and reliability of the evidence of Nonhlanhla, but also suggests that Nana and Nonhlanhla had discussed the merits of the evidence each of them were to give, when called as a witness and gives rise to the possibility that the evidence of Nonhlanhla, including her identification of the appellant, may have been influenced by the views of Nana regarding the guilt of the appellant.


  1. Of course, the evidence of the appellant himself is by no means free from difficulty. His version of events also give rise to suspicion and improbability. His failure to report the event of the shooting of the deceased to the police and his contradictory evidence in trying to explain such failure, does not inspire confidence in him as a witness. But that is not the test. The state bears the onus to prove the guilt of the accused beyond a reasonable doubt.


  1. When it is remembered that Nonhlanhla is and remains a single witness and that there is no material objective corroboration supporting her version, I find myself in doubt that the State had proved the guilt of the appellant with the requisite degree of certainty. Having given the evidence as a whole long and anxious consideration, I have come to the conclusion that the State failed to establish the guilt of the appellant beyond a reasonable doubt. In my respectful view the Regional Magistrate erred in holding that the State had discharged the onus of proof resting upon it.


  1. In the circumstances I would propose that the conviction and sentence be set aside and be substituted with the verdict that “The accused is found not guilty and discharged.”


_________________

VAN ZÿL, J.







I agree. _________________

HOLLIS, A. J.








I agree and it is so ordered. __________________

NICHOLSON, J.




























For the Appellant: Mr P. Marimuthu, instructed by the High Court Unit of the Pietermaritzburg Justice Centre.


For the Respondent: Mr S. H. Ngcobo, instructed by the Office of the Director of Public Prosecutions, Pietermaritzburg.


JUDGMENT RESERVED: 5 August 2009.



JUDGMENT HANDED DOWN: 25 MAY 2010