IN
THE COURT OF APPEAL OF SWAZILAND
HOLDEN
AT MBABANE APP. NO.21/85
In
the matter between:
ELIJAH
BHEKITHEMBA ZUNGU Appellant
v
THE
QUEEN
CORAM: MAISELS,
J.P.
AARON,
J.A.
HANNAH,
C.J.
COUNSEL
FOR APPELLANT: MR. F.P. NDZIMANDZE
COUNSEL
FOR RESPONDENT: MR. S.N. DLAMINI
JUDGMENT
(11/03/86)
Meisels,
J.P.
The
appellant was convicted in the High Court of the murder of one
Abednego Shongwe. No extentuating circumstances having been found he
was sentenced to death.
The
case for the Crown, briefly stated, is the following. On the 31st
January 1985 at about 8p.nu the deceased was found by a Miss Thring
crying for help. At the same time she noticed a flicker of lights
from a vehicle which were going on and off and finally off. Miss
Thring, after hearing the cries for help ran to report to her parents
and she was driven in her grandfather's car to where she had seen the
lights. Upon arrival there it was found that the vehicle had already
left. There was a chase of this vehicle but the chase came to an end
because there was not enough petrol. Miss Thring returned to the
place where she had heard the cries and found that the deceased had
apparently staggered some
2
distance
and collapsed at a spot near a homestead. There is no doubt that when
the deceased was found there were two stab wounds which were observed
by Miss Thring. The deceased was still alive when he was found and
was taken to hospital by the witness Mr. Harris. By the time Miss
Thring and members of her family had wrapped the deceased in a
blanket and, according to Mr. Harris, the blanket was covered in
blood. It is clear from the evidence of Mr. Harris that the deceased
suffered no further injuries when he was transported to the hospital
where surgery was performed on him. Unfortunately the doctor who
performed the surgery had left Swaziland by the time of the trial of
the appellant. The deceased died on the 26th February 1985. It is
not, and cannot be, contended that the cause of the deceased's death
was not the infliction of stab wounds in the upper and lower abdomen
in the midline area.
The
deceased had been employed as a driver of a taxi by its owner Mr.
Magagula. He, on 1st February, received a report in connection with
the deceased and his taxi. He found the deceased in hospital and his
taxi missing. A few days later, namely on the 4th February, 1985, Mr.
Magagula found his taxi outside a Bar. He ran to a police officer,
made a report to him and the two of them went to a car. The police
officer in question was Driver Constable Khuzwayo. When Mr. Magagula
first saw his taxi it was empty but when he and Khuzwayo were on
their way to it they found the appellant accompanied by another
person going towards it. The appellant got into the driver's seat and
was about to start the car. His companion had not yet entered it.
Constable Khuzwayo got hold of the keys of the car from the
appellant, arrested him and drove him in it to the police station. At
the police station the appellant was searched and there was found in
his possession a wallet. This wallet contained a number of papers in
the name of the deceased
3
Abednego
Shongwe and not the appellant. Asked by the police how he had come to
be in possession of the wallet, he said he had found it together with
the documents in it in the cubbyhole of the car. The police asked the
appellant for his name. He refused to give it with the result that a
charge was originally brought against him in the name of the
deceased. After the appellant was taken in custody, Mr. Magagula was
allowed to take his car away. I should perhaps here mention that
according to Mr. Magagula's evidence, although the car still bore its
proper licence numbers, the taxi sign that had been on top of it had
been removed. When Mr. Magagula arrived home after having taken his
car away, he wanted to clean it and consequently he opened the doors
and the boot of the car. In the boot he found a bag, a pair of
trousers, certain handkerchiefs and books. In the course of cleaning
the vehicle he noticed something bulging under the mat, he
lifted the mat and saw that the cause of the bulge was a short spear
about half a metre long. He immediately took these items to the
police station at Manzini to where the appellant had been taken. The
appellant was confronted with these articles. He said, according to
the evidence, that the bag did not belong to him but the rest of the
items were his. I should also mention that in the presence of
Magagula the appellant stated that he had hired the deceased to take
him to Ngwane Park. It was near this Park that the deceased was found
bleeding from what were stab wounds. The trousers which were found in
the car appeared to have certain spots on them which were red - they
appeared to be blood stains. The appellant told the police that these
were his trousers. He explained to them however that they were not
blood stains but were spots which had come on to the trousers because
he had sat on some tar. These spots however were not only on the seat
of the trousers but were also down the front of the right leg of
these trousers. At the trial the appellant denied that he had told
4
the
police that they were his trousers and in fact denied that they were
his.
In
the evidence given by the appellant at the trial he admitted that
most of the stains on the trousers were blood stains. He was unable
at the trial to see any tar stains on the trousers. At the trial
appellant stated that he had been asked about these trousers even
before they had been handed in by Magagula. This of course was
patently untrue.
The
appellant's evidence differed considerably from that of Magagula and
of the police witnesses. His evidence was that he happened to meet a
man called Sipho Mabuza in the bar to which he had gone for a drink.
In the course of conversation with this Mabuza, Mabuza told him that
he was a taxi driver and he, Mabuza, pointed to the taxi outside the
bar, which is of course the taxi in question in this case. He said
that whilst he and Mabuza were having a drink in the bar, the wallet
in question had fallen out of Mabuza's pocket. The appellant said he
had picked it up and when he was about to hand it over to Mabuza,
Mabuza asked him to hold it for some time and he, the appellant, put
it in his pocket. He professed complete ignorance of the contents of
this wallet until the police opened it and took out the documents,
when he saw that these documents were in the name of Shongwe and not
in the name of Mabuza. This story by the appellant is of course
plainly false. It is impossible to reconcile this evidence with his
attitude in refusing to give his own name to the police. It was only
when the appellant's uncle came to the police station the day after
the appellant's arrest that his true name was revealed.
The
appellant's attorney submitted," the record is riddled with
inadmissible admissions and/or confessions." He gave certain
references to the record in support of his submission. I have
5
considered
every one of these references singly and as a whole. There is in my
judgment no substance whatever in his submissions. Indeed so far from
some of them being admissions or confessions they were exculpatory.
It
is not necessary to go into details of the appellant's evidence save
to say that the elarned trial judge found he was a completely
unsatisfactory witness. His evidence was wholly improbable and
unacceptable.
The
learned Chief Justice found that wherever his evidence conflicted
with that of the Crown witnesses he accepted the evidence of the
Crown witnesses. He had no doubt, nor do I on reading the evidence,
that the Crown witnesses told the truth and that the appellant was
untruthful.
The
following facts emerge clearly from the evidence.
1. The
deceased died as a result of two stab wounds which were inflicted on
him on 31st January 1985,
2. There
was a car in the vicinity where the deceased was found still alive
but crying for help.
3. This
car disappeared when another car approached.
4. The
deceased was employed by Mr. Magagula as a taxi driver.
5. The
car he was employed to drive was found four days later outside a bar.
6. The
appellant stated that the deceased had hired him to take him
somewhere.
7. When
the car was found the appellant was in the act of starting the car
with the keys belonging to the car.
8. The
appellant when searched at the police station had in his possession a
wallet which he then said he had
6
found
in the cubbyhole of the car.
9. This
wallet had a number of papers in it in the name of the deceased.
10. The
appellant gave a demonstrably false explanation bordering on the
ludicrous to explain how he came to be in possession of this wallet.
11. He
refused to give his name to the police when arrested, so much so,
that teh police originally charged him under the name of the
deceased.
12. The
appellant admitted to the police that the trousers found in the car
by Mr. Magagula were his trousers. They had blood stains on them.
13. The
appellant gave a false explanation as to how he came to be in
possession of the keys and was about to drive off in the taxi when he
was apprehended.
On
these facts the "perfectly sound, rational, commonsense
solution" to be found in the present case is that the appellant
was responsible for inflicting the wounds as a result of which the
deceased died, of. R v Mlambo 1957 (4) SA 727 (A) 737 D
-
F
and it is quite unrealistic under these circumstances to have regard
to the realms of conjecture. of. e.g. R v Ndhlovu 1945 AD 369 at 386;
R v Dhlymayo 1948 (2) SA 671 (A) at 678; S v Sauls 1981 (3) SA 172
(A) at 182 H-183 B.
There
is in the present case the features that the appellant has, in my
opinion, rightly been found to have given untruthful evidence. This
is a factor which the trial judge and which this Court is entitled to
take into account in strengthening the inference of guilt of the
appellant from the facts set out above.
In
Broadhurst v Rex 1964 AC 441 at 457 Lord Devlin stated:
7
"It
is very important that the jury should be carefully directed on the
effect of a conclusion, if they reach it, that the accused is lying.
There is a natural tendency for a jury to think that if an accused is
lying, it must be because he is guilty and accordingly to convict him
without more ado. It is the duty of the judge to make it clear to
them that this is not so. Save in one respect, a case in which an
accused gives untruthful evidence is no different from one in which
he gives no evidence at all. In either case the burden remains on the
prosecution to prove the guilt of the accused. But if on the proved
facts two inferences may be drawn about the accused's conduct or
state of mind, his untruthfulness is a factor which the jury can
properly take into account as strengthening the inference of
guilt. What strength it adds depends of course on all the
circumstances and especially on whether there are reasons other than
guilt that might account for untruthfulness".
In
the present case I have been unable to find any reason other than
guilt which might account for the appellant's untruth-fulness. The
appellant was given an opportunity of giving evidence or placing
facts before the Court on the question as to whether there were any
extenuating circumstances.
His
Counsel advised the Court that the appellant persisted in his defence
that he had not been guilty of the assault on the deceased which led
to the latter's death. The only circumstances that were or could be
urged in the appellant's favour was that he
8
was
24 years of age. Although the youth of an accused person is Something
that the Court must consider in all cases - of S v Letsolo 1970 (3)
SA 476 (A) at 477 A
-
B,
there is no doubt that the learned trial judge considered this matter
and came to the conclusion that in the circumstances of the present
case the comparative youth of the appellant was not an extenuating
circumstance.
There
are, in my opinion, no legally permissible grounds upon which this
Court would be justified in interfering with the discretion
exercised by the learned trial judge in passing an appropriate
sentence.
In
my opinion this appeal fails and should be dismissed.
(Sgd.
) I.A. MAISELS
JUDGE
PRESIDENT
(Sgd.)
S. AARON
JUDGE
OF APPEAL
(Sgd)
N.R. HANNAH
CHIEF
JUSTICE
