1
IN
THE COURT OF APPEAL OF SWAZILAND
HELD
AT MBABANE Appeal Case No. CA8/2000
In
the matter between:
KHEKHE
SIMELANE & FOUR OTHERS Appellants
Versus
REX Respondent
Coram Leon,
JP
Tebbutt,
J
A
Shearer,
J
A
For
Appellants Mr. B.J. Simelane for 1st, 2nd, 3rd
&
5th appellants & Mr. E. Twala
for
4th appellant
For
Respondent Mr. M. Mabila
JUDGMENT
LEON,
JP
It
will be convenient to refer to the five appellants, as they were in
the Court a quo, as the accused. They appeared before the High Court
on two charges: Count 1 was the alleged murder of George Simelane
while Count 2 was malicious injury to property, i.e. the deceased's
house.
All
the accused pleaded not guilty to both counts but were found guilty
as charged.
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Accused
Nos. 1 and 2 were sentenced to ten years' imprisonment on Count 1 and
two years' imprisonment on Count 2. The sentences were back-dated to
the time of their arrest (29 August 1998) and were ordered to run
concurrently.
Accused
Nos. 3, 4 and 5 were sentenced to seven years' imprisonment on Count
1 and to two years' imprisonment on Count 2. The sentences were
backdated in the same manner and were also ordered to run
concurrently.
The
learned Judge has given a detailed judgment which it is not necessary
to repeat. I shall refer briefly to the background to this case and
to the nature of the evidence.
Accused
Nos. 1, 2, 3 and 5 are brothers while accused No. 4 is their cousin.
The deceased was the uncle of accused numbers 1, 2, 3 & 5 while
the main Crown witness Rejoice Simelane is the aunt of the four
accused and the cousin of accused No. 4 having been married to the
deceased.
Accused
Nos. 1, 2, 3 and 5 had a brother named France and a sister Ivy. Both
died young. France committed suicide while Ivy died after being ill.
There is some evidence that they may have died in mysterious
circumstances.
However
that may be, the motive for the killing appears from the evidence of
PW1 whose evidence suggested that all the accused believed that the
deceased was a wizard who was responsible for the death of
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France
and Ivy. That is why the court a quo found extenuating circumstances
to be present.
The
Crown case against the accused amounts to the following, very briefly
stated. PW1 knew the accused and their voices very well. They had
grown up with her in the same homestead and only moved elsewhere when
they secured employment. She called them her children and the accused
agreed with that description.
On
the evening of the murder, the 27 th August 1998, she had taken water
to the deceased to wash himself. She heard a noise. Stones were
thrown at the roof of their house and at the windows which were
shattered. Voiced shouted, "Come out so we can kill you."
They asked, "Where is Ivy and where is France?" They hit
the door until it broke open. The voices shouted, "Come out,
George, so that we can kill you." PW1 escaped through a window,
shouting; a voice shouted back, "Voetsak." Later she
returned to the house - the deceased was not there but she followed
his footmarks to a donga where she found the deceased dead with
numerous injuries.
She
said that she saw all the accused at the door and although the light
could not have been good, she identified each of them by their
voices. She said, "they are my children and have grown up under
me." She noticed the accused carrying sticks, knobsticks and
stones at the doors. She saw the knobsticks being held in a fighting
position but did not see what was being carried in the other hands.
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In
her evidence she said that the relationship between her and the
accused was "no more good" but she was clearly referring to
the time since the deceased's death.
She
did not deviate from her evidence in cross-examination. In my view
she was a most impressive witness and I reach this conclusion
notwithstanding the arguments by counsel for the appellants to which
I shall later refer.
The
post-mortem report was handed in by consent. It revealed that the
deceased had a laceration over the scalp and multiple penetrating
injuries involving the lung, heart and intestines causing haemorrhage
from which he died.
Thomas
Ndlovu (PW2) gave evidence against accused No. 3. He is a supervisor
at Guys & Sons Bus Services and he also assists in giving
medication to children.
On
a Saturday, on his way to his Chief's kraal, he met accused No. 3 who
said that he was coming to see him for his assistance as he knows him
to be a traditional healer. Accused No. 3 told him that he and others
whom he named had killed the deceased George Simelane with a spear at
his homestead because the deceased had killed his aunt. PW2 reported
this at the Chief's kraal. It was put to him in cross-examination
that accused No. 3 would say that he, PW2, was the first to speak and
he had said, "nephew you had done a good job by killing George
the witch." That allegation was denied as being totally false.
PW2 thought that his assistance had been sought because he had
"helped in some criminal matters."
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An
18 year
-
old
youth Dumisane Simelane testified as PW3. He is related to all the
accused and he knew the deceased. On 27 August 1998 he saw accused
No. 4 enter his sleeping house while the witness went to the kitchen
to see his mother. Accused No. 3's voice called out for accused No. 4
three times saying: "You are not coming out because at your
homestead people don't die, at my homestead they die." He went
to look for accused No. 4 who had disappeared. Accused No. 3 pushed
the door open carrying a spear saying he had come from killing George
Simelane. The spear had bloodstains. In cross-examination it was put
that accused No. 3 would deny that he ever went to the witness's
house.
Phineas
Dlamini was PW4. The deceased was his cousin and he is related to all
the accused. At the material time he said that he had come from
Nkondolo when he was passed by the accused, No. 3 who poked at him
with a stick. Accused No. 3 asked him to what area he belonged. They
then disappeared. He became nervous and shouted to the deceased's
home which was nearby that the deceased should get dressed. PW4 was a
community policeman. He was certain that accused Nos. 1 and 5 were
among those who passed him but was not sure about No. 4. After they
had passed he heard the noise of something landing on corrugated iron
sheets and the breaking of glass and a door. Shortly after that he
saw PW1 running crying and rushing into his house. He went back to
the house with PW1, found the windows and the door broken and the
deceased was not there. He sent a message to the police and the
deceased's body was found the following day in a donga. His
identification is subject to the criticism that he wrongly identified
one Nono as part of the group and he was not sure about accused No.
4.
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Detective
Sergeant Sibandze, PW5, together with other police officers found the
body of the deceased in a donga. He saw that he had wounds inflicted
with sharp instruments, knobkerries and sticks. There were multiple
injuries. Near the body they found two spears and broken sticks.
Accused No. 1 took the police to his house where he pointed out a
spear and two knobsticks. They then arrested accused No. 2, 3 and 4.
At the police station accused Nos. 1, 2 and 3 pointed out the
exhibits which were already at the charge office (spears, sticks, et
cetera). They then arrested accused No. 5.
With
regard to the pointing out he said that accused No. 1 had pointed out
a spear, a stick and a knobstick, accused No. 3 two spears and a
knobstick, accused No. 4 a straight stick and accused No. 5 a
knobstick.
The
trousers of accused No. 3 had bloodstains on them.
He
said that all the accused were cautioned. This was hotly disputed in
cross-examination when it was also suggested that the accused had
been suffocated with a tube and beaten up. When the accused gave
evidence they also claimed to have been throttled but this was not
put in cross-examination. It was also put in cross-examination that
accused No. 3 had told him that the bloodstains were from a goat
which he pointed out but PW5 had no recollection of that.
Constable
Ndzimandze was PW6. He said that he and other policemen had retrieved
a large spear, a knobstick and a straight stick from accused No. 1
who pointed them out. Accused No. 2 produced stones. Accused No. 3
had two spears and a knobstick. Accused No. 4 had two sticks and a
knobstick. They found nothing on accused No. 5.
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He
said that he kept a notebook where all this was recorded but he had
started a new one and the old one disappeared with the exhibits. He
too denied that any force had been used against the accused stating
that they had all been cautioned on more than one occasion.
The
defence of each of the accused, and they all gave evidence under
oath, was precisely the same. They denied all knowledge of the crimes
stating that they were at home at the time in question.
They
all testified that all the Crown witnesses were liars and that they
had been viciously assaulted by the police. No defence witnesses were
called.
The
trial judge found that all the Crown witnesses were reliable and was
particularly impressed by the evidence of the deceased's wife, PW1.
As
appears from the aforegoing the case against accused number 3 is
stronger than that of the case against the other accused. With regard
to the latter, the case against them depends upon the evidence of PW1
together with the evidence relating to the pointing out. The court a
quo did not rely upon the pointing out at the police station and
there are some further criticisms which may be levelled against that
evidence. I am prepared to assume, in favour of accused numbers 1,2,4
and 5 that the case against them depends on the evidence of a single
witness, namely PW1.
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It
was contended on behalf of the appellants that the evidence of a
single witness must be approached with caution and that such evidence
should not be accepted unless it is satisfactory in all material
respects. (see R vs Mokoena 1932 OPD 79 at P 80).
That
judgment must yield to the more modern approach which has been
followed in a number of cases such as R vs Abdoorham, 1954(3) SA 163
(IV)
at
165, S
v
T
1958(2) SA 676 (A) at page 678 and particularly in S vs SAULS and
Others 1981 (3) SA 172(A) at 180 E - G. In
SAULS'
case Diemont J.A. said this SUPRA CIT:-
"There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see the
remarks of Rumpff J.A. in S v WEBBER 1971 (3) SA 754 (A) at 758)."
"The
trial judge will weigh his evidence and consider its merits and
demerits and, having done so, will decide whether it is trustworthy
and whether, despite the fact that there are shortcomings or defects
or contradictions in the testimony, he is satisfied that the truth
has been told. The cautionary rule referred to by de Villiers JP in
1932 (the first Mokoena case) may be a guide to a right decision but
it does not mean,
"that
the appeal must succeed if any criticism, however slender, of the
witnesses' evidence were well founded (per Schreiner J A in R v
Nhlapo (AD 10 November 1952) quoted in R v Bellingham 1955(2) SA
566(A) at 569). It has been
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said
more than once that the exercise of caution must not be allowed to
displace the exercise of common sense. "
That
decision was a decision of the Appellate Division in South Africa, is
plainly right and must be applied and followed by this court.
Both
counsel for the appellants advanced lengthy arguments as to why the
evidence of PW1 should not be accepted. They include the point that
she was frightened, that it was dark and that she could not describe
the clothes worn by the accused. Moreover they contended that her
evidence of voice identification was unreliable.
I
have considered these and the other arguments which were advanced on
behalf of the accused but I am unpersuaded that the trial court erred
in accepting her evidence.
It
is true that PW1 did not describe the clothes worn by the accused but
there is no reason why she should have done so. She knew the accused
and their voices: that is the important point. It is also true that
it was dark but there was light enough for PW1 to see the accused and
the weapons which they were carrying for she saw them at the front
door. Her fright might well have heightened her perception. While she
did not describe precisely what she heard each accused say she heard
enough: she heard the accused calling each other by their names and
singing in unison.
What
is a most important point in this case is that PW1 regarded the
accused as "her children" and they agreed with that
description. As I have mentioned earlier they had grown up in her
homestead and she
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would
inevitably have known their voices extremely well. In general it may
be said that a court should approach voice identification with
circumspection for it in some cases it may not be reliable, but this
is a special case where the evidence on this point, for the reasons
stated, is very strong and she saw them as well.
It
was not suggested in argument that PW1 was a dishonest witness but it
was argued that she may have been mistaken. I am not persuaded that
she was. Moreover the court a quo had the advantage of seeing and
hearing the evidence, an advantage not enjoyed by this court.
Finally
I should add this. The evidence of PW1 is inherently probable, it
hangs together with other relevant crown evidence and it provides the
motive for the killing. The accuseds' evidence was that of a bare
denial and the trial court having heard their evidence rejected it as
false. I see no reason to disagree.
In
my judgment the trial court did not misdirect itself in any way and
there is certainly no basis for holding that one can be satisfied
that it was wrong.
No
argument was advanced on sentence.
The
appeal must be dismissed and the convictions and sentences confirmed.
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LEON,
JP
I
AGREE:
TEBBUTT,
J
A
I
AGREE:
SHEARER,
J
A
Dated
at MBABANE this 12th.....day of December, 2000
