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IN
THE COURT OF APPEAL OF SWAZILAND
HELD
AT MBABANE Appeal Case No. 9/2000
In
the matter between
DUMISANE
FAKUDZE Appellant
vs
REX Respondent
Coram R.N.
LEON, JP
D.L.
HEARER, J.A. P.H.
TEBBUTT,
J.A.
For
Appellant Mr. C.N. Ntiwane
For
Respondent Mr. M. Nsibande
JUDGMENT
12-12-2000
TEBBUTT
J
A
Appellant
was convicted by Maphalala J in the High Court of murder with
extenuating circumstances and sentenced to 18 years imprisonment. He
now comes on appeal to this Court against his conviction and
sentence.
It
is common cause that the deceased. Jobe Simelane, died on 2"
September, 1996 as a result of a shot-gun wound, seven pellets being
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recovered
from his body. A plastic cover of a shot-gun cartridge was found
lodged in the deceased's armpit. The pathologist who performed an
autopsy on the deceased opined that the injuries were consistent with
the deceased having raised his hands during the shooting. The Crown
alleged that it was the appellant who had shot the deceased.
The
background to the charge against the appellant, who was a taxi
operator, was a dispute between him and other taxi operators,
including the deceased, at Mpompotha. The latter had approached the
police to assist them as the appellant was operating his taxi without
having a permit to do so. On 2 September 1996 a meeting of the taxi
operators in the area was held at Mpompotha. The appellant was
present.
What
occurred on that meeting was described by two witnesses at the trial,
viz Det. Sgt. Edward Fakudze, who arranged the meeting, and one of
the other taxi drivers, one Eric Hlandze. Told by the police that he
had to obtain a permit, the appellant was adamant that he would not
apply for one but would continue to operate illegally. He raised his
voice and although the police tried to calm him down he maintained
his attitude and said that "he was going to finish them off."
Later
that day a woman, Phumaphi Mamba, wanted to get from KaPhunga to
Mpompotha. She asked the appellant for a lift, who agreed to give her
one and put her luggage in his car. However, so she testified, a boy
named Lukhele took her luggage out of the car. Appellant loaded it
back again but Lukhele again took it away. Appellant did not say
anything but drove away. She was told by the deceased, who was
present and who apologised for what had happened, that she was caught
in a dispute in which the appellant was refusing to obtain a permit
for a taxi in
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that
area. She later got a lift with someone else. She said that when the
appellant drove away he appeared annoyed.
What
occurred later that day was testified to by a number of Crown
witnesses. Albert Mathobela (PW1) said he was in the deceased's car
at about 3.30p.m. going from Manzini to the Mbhoke area. As they were
going up the hills at Nsingweni, the appellant in his car came from
the opposite direction. He stopped his vehicle across the road. The
deceased branched off into the bush. The appellant chased after the
deceased's vehicle on foot as far as a pit where the latter could go
no further. The deceased jumped from his vehicle and started running
away whereupon the appellant returned to his vehicle and drove off
after the deceased. He and the others who were left in the deceased's
vehicle heard two gun shots from the direction in which the appellant
had driven. PW1 said that when the appellant stopped his car across
the road he alighted from it. He was carrying a firearm - " the
one for hunting wild game". PW2 was Fungile Fakudze. She was
also in the deceased's taxi when the appellant stopped his vehicle
across the road. The appellant alighted from it. He was carrying a
gun. The deceased branched off into the bushes and jumped from his
vehicle and ran away. She started crying as she thought the appellant
was going to kill the deceased. The gun he was carrying was a "long
gun". PW6, Nester Thabsile Khulu, gave evidence to the same
effect.
An
eye witness testified to the shooting of the deceased by the
appellant. PW3, Tsembeni Mamba, an elderly woman, said she knew both
the appellant and the deceased. On 2 September, 1996 she saw the two
of them. She heard the deceased calling for help and saw him being
chased by the appellant. She was with one Michael Muntu Mamba, who
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had
died before the trial. Mamba said to the appellant "stop
Fakudze, son of Mandolwane". The appellant fired a shot into the
ground. The deceased said "stop, do not kill me, let's talk. I
will give you my permit" The appellant stepped back, loaded his
firearm and came towards the deceased who ran away. The appellant
fired a shot at the deceased who was hit and fell down. The appellant
again loaded his firearm and said to the deceased "I have always
been telling you". The deceased then died. Before he died he
said "help, here is Dumisane. He wants to shoot me". The
firearm, said PW3, was similar to the one which was an exhibit at the
trial, i.e. a shotgun. Another resident of the area, Dumisane Lukhele
(PW 14) said that at about 3.30p.m. he saw a taxi standing next to
some trees. There were people in and outside the taxi. He also saw
the appellant, who was carrying a firearm. He saw the appellant going
back to his motor vehicle and driving off. Some three to four minutes
later he heard the sound of two gunshots. He then again saw the
appellant's vehicle proceeding towards Mpompotha.
Two
other significant Crown witnesses were the appellant's sister-in-law,
one Sibongile Alice Nhlabatsi (PW4) and his girlfriend Nomthandazo
Mamba (PW5). PW4 said she saw the appellant at her homestead at
4.30p.m. on 2nd September 1996 who told her that "Jobe had died
accidentally in my hands using a gun". He asked her to tell his
father. She was afraid to do so and said he should do so himself. He
later asked her to pack his clothes and gave her E50 for the bag in
which they were packed. He then drove off. PW5 said on 13 September
1996 appellant telephoned her at work and said he was phoning her
from Nseleni in KwaZulu Natal in South Africa and asked her to join
him there which she did on 23 September 1996. He told her that he was
in South Africa because the deceased had died accidentally in his
hands. He gave
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her
E2 000.00 to brief a lawyer for him and said he would hand himself
over to the police.
All
the crown witnesses were subjected to a lengthy, thorough and
searching cross examination by defence counsel. PW3 was particularly
cross-examined at great length as to why her version at the trial
differed from what was reflected in the summary of her evidence
prepared by the Crown. She said she was not responsible for this and
did not know the reason for the discrepancy. Her version in court was
the true one of the events that day. The only witness who was not
cross-examined at all was appellant's girlfriend, PW5, whose evidence
stood unchallenged.
The
appellant's father Simon Mandolwane Fakudze, said he saw appellant at
the KaPhunga Police Station after the latter's arrest. In the company
of police officers, he said he had used a shotgun to kill the
deceased which he had taken from one of his father's four wives. The
appellant's face was swollen and it appeared that he had been
severely beaten. A police inspector, one Mdluli, said he also saw the
appellant's face was swollen and he was bleeding. The appellant said
that when he said he had killed the deceased he had not done so
freely and voluntarily but because of assaults by the police.
The
police officer who arrested the appellant at Empangeni in South
Africa said he found the firearm allegedly used by the appellant in a
house belonging to his mother.
The
appellant testified in his defence. He denied killing the deceased.
He said that after the meeting at which the question of permits was
discussed, he wanted to give Phumaphi Mamba a lift but the boy
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Lukhele
prevented him from doing so by taking her luggage out of his car. The
other taxi drivers were aggressive and he drove away. He later went
to Mpompotha. He parked his vehicle next to a big tree and took out a
tyre pump to inflate his tyres. After doing so and as he was taking
the pump to the car he heard a loud sound behind him. He then heard a
crying noise and saw a motor vehicle disappearing into the forest
behind him. He went to investigate and saw people getting out of the
vehicle and disappearing further into the forest. He recognized the
vehicle as belonging to the deceased. He did not see the deceased. He
drove to Mpompotha to pay a petrol attendant there, then went to see
his girlfriend whom he did not find. Later that day he parked his
vehicle at home and went to South Africa to check on his aunt who
lived there as he wanted to acquire South African citizen documents
in order to get a job. He had not used a passport to get into South
Africa but had entered the country illegally. He said he had been
assaulted and tortured by the police to tell his father that he had
killed the deceased. This latter statement was not true.
Under
cross-examination, the appellant said that all the Crown witnesses
were lying. PW1 and PW3 were lying, as were all the rest. The
evidence of his sister-in-law Sibongile Nhlabatsi was pure
fabrication. His girlfriend was also lying. She had misunderstood
what he told her. He had told her that the deceased was nearly
injured in front of him. He denied that he had given her E2 000 to
brief a lawyer for him.
The
learned trial judge found the evidence of the passengers in the
deceased's taxi truthful and stated that he could not see how they
could come to court and tell lies against the appellant with whom
they had no vendetta. He also found the evidence of Lukhele truthful.
All these
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witnesses
corroborated one another. The evidence of the only eye witness,
Thembeni Mamba, although searchingly cross-examined, remained intact
as to how the appellant had shot the deceased. The evidence of
appellant's sister-in-law and girlfriend was also damning against the
appellant. It was also significant that within hours of the event,
appellant fled to South Africa, entering that country illegally.
This
court will not lightly interfere with findings of credibility by a
trial court and will only do so if they are manifestly wrong. In this
case they are, manifestly correct. Appellant's evidence per Contra
was evasive, improbable and obviously untruthful.
Before
this court the only ground of substance that was argued on
appellant's behalf is that the trial court erred in accepting as
truthful the evidence of PW3, Thembeni Mamba. The major criticism of
her evidence is that it was at variance with the summary of her
evidence that was supplied to the defence by the Crown. The learned
trial judge considered this carefully and applied the dictum of Cohen
J in Rex v Simelane and two others 1979-81 S.
L.
R.
251 that although the summary of evidence must be taken from the
statement of witnesses for the prosecution, the witnesses concerned
are not personally responsible for the contents of the summary and
save where there has been a clear departure from the summary on
material issues, discrepancies between the summary and the actual
testimony of a witness should not be overemphasised. This is
especially so in the case of illiterate persons who would, in most
cases, be too nervous even to correct a police officer's error when
the statement is read over to them for confirmation. The learned
trial judge said this was the position in respect of the evidence of
this witness, whose testimony he found to be credible and acceptable.
No
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fault
can be found with either the reasoning or the finding of the trial
court.
It
was also argued that in the summary of evidence with which the
defence was supplied prior to the trial a witness by the name of
Jester Lukhele appears who, it seems, could have corroborated PW3 but
was not called by the Crown. No inference adverse to PW3 can be drawn
from this. The Crown may have been satisfied that her evidence was
sufficiently convincing, as indeed the trial court found it to be.
Other points of criticism of PW3's evidence were also raised: for
example, as to variances in certain distances to which she testified.
These were obviously only estimates and do not detract from her value
as a credible witness. Her evidence, moreover, is corroborated in
every material respect by the other witnesses who saw the appellant
with a firearm, heard the sound of gunshots and testified as to what
appellant told them had occurred.
The
incontrovertible facts are that the appellant was seen with a
shotgun; that he threatened the deceased; that the deceased died of a
shotgun wound; and that he told both his sister-in-law and his
girlfriend that the deceased had died at his hands.
The
court a quo was correct, in my view, of convicting the appellant. As
it stated, "In sum, the accused killed the deceased in cold
blood because of the dispute he had with other taxi men, including
the deceased".
The
court a quo found extenuating circumstances in the fact that the
appellant had been seething with anger following the meeting with the
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other
taxi-men and the dispute over his giving a lift to the old lady,
Phumaphi Mamba. This served, subjectively, to reduce his moral guilt.
In my view the appellant was lucky in this finding. Indeed the trial
judge recognised this when he said it was "based on narrow
margins".
As
to the sentence of 18 years, it is undoubtedly a severe one but, in
my view, having regard to the circumstances, one that was merited. It
involved no misdirection by the trial court. It was submitted before
us that the appellant was in custody for almost three years before
being sentenced and the anxiety of awaiting trial for so long should
have earned the appellant a reduction in sentence. This is no reason
for reducing a sentence. Most awaiting trial prisoners are anxious as
to their fate. In any event appellant's sentence was backdated to the
date of his arrest. The sentence, finally, is not such that there
would be a discrepancy between it and what this court would have
imposed, to warrant an interference with it. Indeed, there would, in
my view, be no discrepancy.
In
the result, therefore, the appeal is dismissed and the conviction and
sentence are confirmed.
P.H.
TEBBUTT, J
A
I
AGREE:
R.N.
LEON, JP
I
AGREE:
D.L.
SHEARER, J
A
