IN
THE COURT OF APPEAL OF SWAZILAND
IN
THE APPEAL COURT OF SWAZILAND
HELD
AT MBABANE
CR.
APPEAL CASE NO. 42/93
In
the matter between:
JAMLUDI
MKHWANAZI 1st
Appellant
MBONGENI
MASUKU 2nd
Appellant
and
THE
KING Respondent
CORAM:
Kotze'
P.
Steyn
J.A.
Tebbutt
J.A.
FOR
THE CROWN :
Mr. L.Ngarua
FOR
THE APPELLANTS :
Mr. L.M. Maziya
Judgment
(12/4/96)
TEBBUTT
J.A.
The
two appellants were convicted by Thwala J. in the High Court of
murdering one Donkana Shiba near Lawuba on 3 April 1994 and of
robbing him of his motorcar. In second appellant's case (I shall for
convenience refer to him as MASUKU) extenuating circumstances were
found to exist and he was sentenced to ten years imprisonment on the
murder charge and five years for the robbery. In the case of first
2
appellant
(to whom I shall refer as MKHWANAZI), no extenuating circumstances
were found and he was sentenced to death. Both appellants now come on
appeal to this Court against their convictions and sentences.
It
is undisputed that on the night of 3 April 1994, Donkana Shiba, the
deceased, was killed by a single gunshot wound in the back of the
neck. The car he had been driving was found abandoned later. The
interior was bloodstained. In the car the police found a .38 calibre
fired bullet which was later identified by a police ballistics expert
as having been fired from a .38 revolver of which the police obtained
possession.
How
the police obtained possession of the revolver was one of the
pertinent pieces of evidence relied upon by the learned trial Judge
in convicting MKHWANAZI. Indeed it was on this and the evidence of
one Lindiwe. Ngwenya that the Court a quo based its finding of guilt
against both appellants.
Ngwenya's
evidence was that at about 6 p.m. on the night of 3 April 1994 she
was walking from her home at Lawuba to Mbulungwane when she met
Masuku. He asked her where she was going and when she told him he
said that there was a motor vehicle coming and that he would ask for
a lift for her in the vehicle. She told him she did not like getting
lifts at night but he held her by the arm and shortly afterwards a
car arrived which Masuku stopped. He asked the driver to take her to
Mbulungwane but the driver said he was not going there but to
Mbelebeleni. Masuku then asked him to drop her at Mafehla from where
she would walk the rest of the way. She got into the car, sitting
next to the driver.
Masuku
got Into the back of the car where another man was also sitting. The
latter was behind the driver. The car had travelled only a short
distance when the man behind the driver shot him from behind. The car
came to a stop and she and Masuku both got out of it. Masuku then
pulled her into the bush there, where he had intercourse
3
with
her. He told her he was "a Masuku from Sandleni working In
Pongola." She said she allowed him to have intercourse with her
because she was afraid he would kill her. She later walked home
accompanied by him. She did not see the second man or the car again
that night.
Ngwenya
said that she could not identify the second man as it was dark. She
certainly could not identify him as Mkhwanazi. She presumed he was
the second man as he was present with Masuku at the Hlatikulu police
station when she saw the two of them together there. She could not
say that it was he who shot the deceased. She identified Masuku
because he looked very much like his brother, with whom she had once
had an affair. In fact she thought it was the latter with whom she
was having intercourse that night. She said she only found out who
Masuku was, when, as he accompanied her on the way home, he lit a
match and showed her his tax certificate.
Under
cross-examination Ngwenya said that she had not reported Masuku's
rape of her, or the shooting because she "did not think of doing
that."
How
the police obtained possession of the revolver was described by
Detective Constable Ephraem Dlamini. He arrested Mkhwanazi at his
home on 8 April 1994 and warned him in terms of Judges' Rules. On 9
April 1994 Mkhwanazi took him to the home of one Thokoza Mkhwanazi
where in the nearby fields a .38 revolver was found wrapped in
plastic. It was the revolver sent to the ballistics expert for
testing. In the latrine pit of the homestead, a boy named Sonnyboy
Dlamini, whom Mkhwanazi called up on to help them, using a stick,
fished out a set of keys. These were car keys which were found to fit
the abandoned car of the deceased and house keys which fitted the
doors of the deceased's house. They were also identified by the wife
of the deceased as being those of her husband. Sonnyboy corroborated
the evidence of Detective Dlamini, as to the fishing out of the keys
from the latrine pit. Detective Dlamini said he also arrested Masuku
and searched his room. In the pocket of a brown jacket there he found
an empty .38 cartridge. The jacket, Masuku told him, belonged to
Mkhwanazi. It is on record that the ballistics expert could not
identify the cartridge with the .38 revolver in question.
4
Mkhwanazi
denied any involvement in the murder of the robbery. He denied
pointing out or handing over the revolver to the police or asking
Sonnyboy to assist in fishing out the keys from the latrine. He said
that Thokoza and Sonnyboy asked the police to implicate him in order
to save one Elijah Shiba. It has to be noted that the police arrested
the latter as a suspect and detained him for eight months before
releasing him and that while in custody certain of the neighbouring
villagers, who also suspected Shiba of the murder, burnt down his
house and his motor car. Shiba was not charged with any crime. Masuku
also denied any involvement in the murder or robbery. He was with
Mkhwanazi earlier that evening but they parted ways, he going home
and then going to Pongola to work. He denied seeing Ngwenya that
night or raping her or showing her his tax certificate.
Before
setting out the learned Judge's reasons for convicting the appellant
it is necessary to refer to the manner in which he conducted this
trial. From start to finish he intervened in and interfered with
counsel, both for the Crown and for the defence in the conduct of
their cases. The appellants were defended by the late Mr, Cele who
died recently and who during his lifetime was a competent and
experienced attorney of this Court. The trial Judge continuously
interrupted Mr. Cele's cross-examination of the Crown witnesses,
frequently making gratuitous and irrelevant comments during their
testimony. Mr. Ngarua, who appeared for the Crown both at the trial
and in this Court, also did not escape the trial Judge's displeasure,
being frequently criticised for the mariner in which he was
presenting his case and leading his evidence. It was, however, during
Mr. Cele's argument at the conclusion of the evidence, that the
Judge's conduct calls for most comment. That argument was recorded
and it is quite clear that Mr. Cele was not given a proper hearing.
Almost throughout his argument he was hardly able to complete a
sentence without being interrupted by the Judge, despite frequent
appeals by Mr. Cele to be given the opportunity to make his
submissions without interference by the Court. This was particularly
the case when Mr. Cele wanted to submit that the evidence of Lindiwe
Ngwenya was unreliable. The interruptions by the Judge allowed him no
proper chance to do so. The same applies, perhaps to even a greater
extent in the case of Mkhwanazi where Mr. Cele became so distressed
by the Judge's
5
interruptions
that he was constrained to say that he would make no submissions and
was told by the Judge to sit down. There followed an acrimonious
passage at arms between the Judge and Mr. Cele who, obviously so as
not to disadvantage his client, continued his argument. Again he was
not allowed to advance his argument properly having to endure, inter
alia an accusation by the Judge that he was insulting the Judge and,
when he attempted to criticise the evidence of the police, that he
was also insulting the police.
It
has been stressed time and again by courts in England, South Africa
and Swaziland that a trial Judge should not unnecessarily intervene
in the proceedings and, as it is said, descend into the arena so as
to allow his judicial vision to be clouded by the dust of conflict,
particularly where, as in this case, that conflict and the resulting
dust has been caused by the Judge himself (see e.g. Yuill v Yuill
(1945) 1 All E.R. 183 at pages 185 and 189; Jones v National Coal
Board (1957) 2 All E.R. 155; R. v Roopsingh 1956 (4) SA 509 (A);
Hamman v Moolman 1968 (4) SA 340(A) at 344 D - G; S. v Meyer 1972 (3)
SA 480 (A) at 482 F - H and 484 D - F; Caiphas Dlamini v Rex 1982 -
86 SLR(2) 309 at 312 - 313).
In
the Caiphas Dlamini case, Welsh J.A. expressed himself thus:
"In
S. v Mabote en Andere 1983(1) SA 745(0), at 746, the court pointed
out that it is a basic principle of criminal law that an accused
person should have the right to address the court which is trying him
before judgment is given on the merits and that the opportunity to
exercise that right should be afforded to him regardless of his
prospects of success. The court expressed the view that a failure to
afford the accused that opportunity affects the essence of the
administration of criminal justice and cannot be regarded as anything
other or less than a gross irregularity, which destroys the fairness
and therefore also the validity of the proceedings in question."
I
am of the view that because of the trial Judge's conduct of the case,
Masuku did not have a fair trial.
The
trial Judge also misdirected himself in regard to his approach to the
evidence. In his reasons for convicting the appellants he said -
6
"I
now have to test the evidence of the Crown and that of the defence
and see which is better."
That
approach is clearly erroneous. It is trite law and well-established
that the trial Court in a criminal case, unlike in a civil case where
the party on whom the onus lies must establish its case on a balance
of probabilities, has to be satisfied that the prosecution has proved
its case beyond reasonable doubt. There is no question of considering
which party i.e. the prosecution or the defence, has presented a
better case. The trial Court must consider whether the accused's
version or his defence is reasonably possibly true. If it Is, the
accused is entitled to his acquittal.
The
trial Court's reasons for convicting the appellants read as follows
(Mkhwanazi was of course No. 1 accused and Masuku No. 2 in the Court
a quo) -
"The
Crown evidence against No. 1 is that he left Thokoza's place with No.
2 on the night of the killing. When he was arrested, he pointed the
gun which was used in the killing. he also pointed the keys belonging
to the deceased. It is also supported by Lindiwe that a gun was used.
The deceased was shot at the back of the neck. The post morterm also
supports Lindiwe's evidence. Lindiwe positively identified No. 2. No.
1 also confirms that he left Thokoza's kraal with No. 2. The bare
denial by No. 1 cannot stand against the evidence led by the Crown.
No. 2 has been identified by Lindiwe Ngwenya. The evidence confirms
that he left Thokoza's place with No. 1. He was seen by Lindiwe at
the killing. What Lindiwe told his boyfriend led to his arrest,
Lindiwe's evidence is supported by his arrest, her boyfriend, the
medical evidence and that he was with No. 1 on the night of the
killing. No. 2 stopped the car in order to carry out their intention
to kill and robbed the deceased. There was no reason for them to
board the car if they did not want to rob the deceased. I find that
the Crown has proved its case."
It
is clear that for his conviction of Masuku, the learned Judge relied
heavily on the evidence of Lindiwe Ngwenya.
7
Her
evidence, however, is open to considerable criticism. She at first
thought that Masuku was her former lover, his brother - even when he
had intercourse with her. That is, I think, extremely surprising. I
also find it most unlikely that if, as she says, she saw a shooting
in which Masuku was a participant and he then raped her, that he
would show her his tax certificate to identify himself beyond doubt.
It is also most strange that she neither reported the rape nor the
shooting because "she did not think of it". She witnessed a
murder but did not think to tell the police about it. Even though, as
Mr. Ngarua said, she is a simple, unsophisticated rural girl, I find
that hard to believe. In my view the trial Court should have placed
little or no reliance on her testimony. Even on her evidence, though,
Masuku could only be convicted on the basis of a common purpose. The
evidence in my opinion, does not establish beyond reasonable doubt
that Masuku knew that Mkhwanazi, if he was the gunman, intended to
rob the deceased of his car or that he might shoot the deceased in
order to do so. His association with Mkhwanazi earlier that evening
falls far short of such proof. Nor does the presence in his room of
Mkhwanazi's jacket, with a spent .38 cartridge in a pocket, provide
such proof. The cartridge was not identified as having been fired by
the .38 handed over by Mkhwanazi to the police. It is also not clear
that Masuku stopped a car knowing that Mkhwanazi intended to rob the
driver of it or that Mkhwanazi might shoot the driver in doing so.
There is certainly no evidence to that effect, even from Lindiwe, nor
is there sufficient evidence from which such an inference - and, of
course, it must be the only reasonable inference (see R. v Blom 1939
A.D. (188)) - can be drawn. On Lindiwe Ngwenya's version of events,
Masuku went to pains to ensure that she was with them in the car when
the deceased was shot. I find it strange that if it was the intention
of the appellants to rob the deceased that Masuku should wish to have
Ngwenya in the car where she would obviously be an eye witness to the
robbery and a possible shooting.
It
is also strange that if he was a party to the armed robbery, Masuku
should wish to put his identification by Ngwenya beyond doubt by
showing her his tax certificate - if, of course, he ever did so.
The
trial court, by not permitting defence counsel to make his
submissions in regard to Lindiwe, precluded himself from properly
8
evaluating
Masuku's guilt. It is also certain from his judgment that he clearly
did not properly consider whether the Crown had established the
existence of a common purpose between Mkhwanazi and Masuku. I am of
the view, therefore, that the Crown failed to prove its case against
Masuku beyond reasonable doubt and that he was entitled to his
acquittal. He is accordingly found not guilty and discharged.
As
far as Mkhwanazi is concerned, his conviction rested on the evidence
of Detectives Dlamini, Mamba and Sonnyboy, viz that he had pointed
out to Dlamini the revolver which was admittedly the murder weapon
and had asked Sonnyboy to assist him in fishing out the deceased's
keys from the pit latrine.
Let
me say at the outset that evidence of pointing out as a means of
linking an accused with a crime, should, in my view, be approached
with considerable caution - especially when it is the only evidence
which links an accused with the commission of a crime. Indeed, it is
the lazy investigating officer's most convenient standby. It is
capable of easy fabrication and difficult to refute. It is for this
reason that the Courts in Southern Africa, including Courts of this
jurisdiction, have insisted on proof that such pointing out was
freely and voluntarily made. See R. v Petros J. Mhlongo (Court of
Appeal No. 185/92 unreported, following the South African Appellate
Division decision in S.v. Sheenama 199l(2)SA 869(A). In this case,
however, the issue of voluntariness does not arise. There is no
allegation or any evidence of assault, coercion or other conduct
which could reasonably be held to have affected the voluntariness of
the pointing out. The issue which is in dispute is whether such
pointing out took place at all.
As
already stated, the Crown led evidence that both in respect of the
pistol with which the crime was committed and the keys which had been
in the possession of the deceased, were in fact recovered as a result
of conduct by Mkhwanazi. In so far as the keys are concerned both the
police officers who testified attested to the appellant's presence
and participation in the means of the discovery and recovery of this
piece of evidence. They were corroborated in this respect by Sonnyboy
and the wife of the deceased. It is true that in respect of
9
Sonnyboy's
evidence there is patent confusion as to whether he was asked to find
the pole - with which the keys were recovered from the pit latrine -
by the appellant or by the police, but there is no doubt on his
evidence of the fact that the appellant was present when the keys
were recovered, that he assisted in their recovery and that both
accused were present when it was demonstrated that the keys opened
the house of the deceased. It is true that the deceased's wife placed
the time of the latter event as being 4 April 1994 and that the
appellants were only arrested on 8 April 1994. Nothing, however, in
my opinion turns on this contradiction. To fail accurately to recall
months after the event the date at which the police visited the home
of the deceased is no ground for holding that the evidence was
fabricated or of a police conspiracy to implicate the appellant.
However,
the suggestion that the police fabricated the evidence of the
pointing out of the revolver and the keys must be seriously
considered. I say this, firstly, because of the risks inherent in
this kind of evidence as outlined above. Secondly, it must be borne
in mind that this was the allegation made by the defence during the
trial and was in fact tendered in evidence by Mkhwanazi.
The
version of a fabrication by the police has to be tested against the
available evidence and the probabilities. In regard to the
probabilities, it would seem to this Court to be highly improbable
that the police would have set in motion a complex train of events
culminating in keys being recovered from a pit latrine by the use of
a pole, washed in the presence of witnesses and found to fit the car
and the doors of the deceased's house. The same applies to the
revolver, which was found in a different spot in the field nearby.
Again, it would require extraordinary sophistication to manufacture a
version of this kind and for it to be sustained under
cross-examination. I find the suggestion made by Mkhwanazi that the
police had found the keys and the revolver in the car and fabricated
a version that a pointing out took place, to be highly improbable.
In
regard to the available evidence the court had before it not only the
evidence of the police witness Dlamini but also of the other
policeman, Mamba. Their description of the events that took place
10
at
the pointing out is supported in material respects by, the evidence
of Sonnyboy who is the nephew of Mkhwanazi. He testified that he saw
the two appellants at the homestead where he lived during the first
week in April. He saw Mkhwanazi again on 9 April 1994 when he came
with three or four police officers (which, it appears, included
Dlamini and Mamba). He then deposed as to the events which took place
during the pointing out and the recovery of the keys.
It
was, however, during the cross-examination of this witness that some
of the most serious interventions in the conduct of the trial
occurred. As set out above, counsel for the appellants was repeatedly
interrupted by the presiding Judge. He challenged the right of the
cross-examiner to impugn the credibility of the witness on the ground
that it was the defence case that the appellants were not present.
For this reason he instructed him to put this to the witness and
nothing else and directed him to desist from testing the reliability
or credibility of the witnesses.
This
was clearly improper. One of the ways in which the defence could cast
doubt on the reliability of the Crown case that the appellants were
present at the pointing out, was to highlight discrepancies between
Sonnyboy's evidence and that of the police officers who were present.
The trial Judge also curtailed the cross-examination of Sonnyboy as
to a possible motive for the latter's wishing to falsely implicate
Mkhwanazi, in order to test his credibility. Moreover, as also set
out above, the trial Judge so interrupted Mr. Cele's argument on
behalf of Mkhwanazi that he was at one stage constrained to cease his
submissions altogether. Even thereafter when he resumed, the trial
Judge did not allow him to argue that the evidence of Sonnyboy and
the police was unreliable, admonishing him that he was insulting the
police. Once again, this was, as pointed out by Welsh J.A. in Caiphas
Dlamini's case a gross irregularity.
This
Court must, however, consider whether despite the irregularities, the
Crown has satisfied the Court that there has been no miscarriage of
justice.
11
This
court sitting as a Court of Appeal has to reassess the evidence
without the benefit of an appropriate reliance on the findings of the
Court below. It forfeits the advantage of a court of first instance
that has had the opportunity of seeing and hearing the evidence at
first hand. It is obliged to rely on the cold print of the written
record. It must decide on such record whether a court, free of
irregularity and properly instructed, would inevitably have convicted
Mkhwanazi.
The
manner in which the Judge curtailed cross-examination causes us grave
concern - especially as we are obliged to assess this evidence
without the benefit of reliable credibility findings and on cold
print only.
The
fact that fabrication is highly improbable and that the appellant is
probably guilty does not in our view suffice. The Crown has to
satisfy us that despite the grave irregularities it is safe to
convict. In our view it is not.
The
appellant Mkhwanazi did not, in our opinion, receive a fair trial.
That he may well be guilty but yet goes free is attributable to the
most unfortunate series of irregularities in the way in which the
presiding Judge conducted the hearing.
The
appeal in respect of the appellant Mkhwanazi therefore succeeds to
this extent that we declare that a mis-trial has occurred and he is
accordingly released. He can, however, be re-indicted should the
Attorney General so direct.
In
summary, therefore, while Masuku, like Mkhwanazi, did not have a fair
trial, the evidence in his case also was insufficient to sustain a
conviction. He is therefore found not guilty and acquitted. By
12
contrast
in Mkhwanazi's case, we have declared that a mis-trial has occurred.
He is therefore entitled to his release but can be re-indicted should
the Attorney General so direct.
(Signed)
Tebbutt
J.A.
(Signed)
Kotze'
P. :
I agree
(Signed)
Steyn
J.A. :
I agree
